Death of a Member

Baroness Hayman: My Lords, it is with regret that I have to inform the House of the death of Lord Beaumont of Whitley on 8 April. On behalf of the whole House, I express our condolences to his family and friends.

Personal Statement: Baroness Park of Monmouth

Baroness Park of Monmouth: My Lords, with the leave of the House, I wish to make a personal statement.
	During the discussion on the Statement on Zimbabwe on 3 April, I said:
	"Unless the present head of the UNDP is withdrawn, there will not be very much confidence in the UN's role in the future of Zimbabwe. Two successive UNDP leaders have been far too close to Mugabe and indeed, in one case, have taken land from him".—[Official Report, 3/4/08; col. 1187.]
	I do not resile from my reservations about the UNDP's relations with the Government of Zimbabwe. However, I said in good faith and believing it to be fact that one of the two heads of the UNDP in Zimbabwe had accepted favours of, I thought, land. I now recognise that I was wrong in believing what I said to be a generally accepted fact. I have and had no evidence to support my statement. I therefore wish to apologise, first, to the House for making a statement that I should not have made and, secondly, to Mr Angelo and Mr Zacarias for the unfavourable imputations that I have made against their reputations.

Common Agricultural Policy: Reform

Lord Dykes: asked Her Majesty's Government:
	When they will next discuss future reform of the European Union budget with regard to common agricultural policy restructuring in the Council of Ministers.

Lord Rooker: My Lords, the Agriculture Council will discuss the reform of the common agricultural policy as part of this year's CAP health check. Separately, European Union spending, including the common agricultural policy, is currently subject to the EU budget review, but no timetable for discussion in the Council of Ministers has yet been established.

Lord Dykes: My Lords, page 20 of the recent Foreign Office pamphlet, Guide to the European Union, says that the CAP has now been reformed and that it,
	"no longer produces wine lakes or butter mountains. It is now moving ... towards protecting the countryside".
	Is the Minister confident that this great change can be achieved fully without mass penury among farmers?

Lord Rooker: Yes, my Lords, but the CAP is still the most visible and expensive part of the Common Market. It hampers innovation, interferes with trade and does not bring Europe anywhere near to competing in the global economy, so it needs reform.

Lord Bilimoria: My Lords, we all know that the World Trade Organisation Doha development round has stalled primarily because of agricultural subsidies, in particular with regard to the United States and the European Union. Do the Government think that it is justified that we in the European Union, for example, subsidise our pals by $2 a day when nearly 1 billion people around the world live on less than $1 a day? Does the Minister sympathise with those who accuse the West and the European Union in particular of preaching fair and free trade but of practising protectionism?

Lord Rooker: My Lords, I agree with much of the sentiment of the noble Lord's question, but the fact is that the CAP needs reform. Not only are the figures he quoted correct, but I resent the fact that British taxpayers are subsidising the production of tobacco in Europe.

Lord Teverson: My Lords, on reform of the common agricultural policy, will the Minister say what the Government's attitude will be to the payment for and regulation of biofuels and how the European Union should encourage or otherwise the growth of biofuels within the EU?

Lord Rooker: My Lords, to be honest, no, because that goes way beyond the Question. It is an ongoing issue. We are waiting for the formal response to the CAP health check on 20 May. The negotiations on the EU budget will start much later than that. By then, we will have a new European Parliament and a new European Commission. I am sure that all these matters will be discussed, but I regret that I cannot go beyond what I have said today.

Lord Stoddart of Swindon: My Lords—

Lord Taylor of Holbeach: My Lords, given that much has changed since the CAP health check was proposed, what do the Government now see as their priorities in the discussions?

Lord Rooker: My Lords, the removal of the remaining production subsidies still has to be a key element. The reduction and the abolition of milk quotas are examples that we have put forward. Each country has its own priorities and we will not all get our priorities. The health check is not reform in the sense that we would normally use the term, but if we can get a degree of agreement for more spending on the environment and the landscape rather than on food production, that would be to the benefit of everyone.

Lord Hannay of Chiswick: My Lords—

Lord Stoddart of Swindon: My Lords, I think that it is this corner.

Baroness Ashton of Upholland: My Lords, we have heard once from the Cross-Benchers. We have not heard from the party of one in the corner. Perhaps we have time for both.

Lord Stoddart of Swindon: My Lords, I am most obliged to the Leader of the House. I welcome the Minister's answers, but is he not facing an uphill task in getting reform, bearing in mind that the German and French Ministers have publicly stated that they are against any reform of the CAP?

Lord Rooker: My Lords, I do not think that my noble friend is accurate. In recent months at European Councils, I have been face to face with German and French Ministers and have listened to them point to the changes that they want. The French take over the presidency next month. They have made it clear that their four themes are food security, balanced trade, rural cohesion and new environmental challenges. It remains to be seen how the French will play their hand. The Germans want some reform, but they do not agree with all the reforms that we want.

Lord Hannay of Chiswick: My Lords, does the noble Lord agree that the recent sharp rise in world food prices and the probability that that rise will be sustained for a considerable period put the whole issue of CAP reform, the Doha round and the budget review in a different light? Would the Government be prepared to give the House the benefit of some studies that they might make on the impact of the rise in food prices on all these issues, which would make subsidisation of agricultural products a much less attractive proposition than it was before?

Lord Rooker: My Lords, the noble Lord's latter point is absolutely right. The Prime Minister has written to the Prime Minister of Japan as chair of the G8 to put this issue on the G8's agenda. There is no single answer on the rise in commodity prices, but two poor harvests and the drought in Australia have contributed enormously to the drop in total grain stocks around the world. On top of that, the demand for food in China and India has changed. As I said, these issues will be raised at the G8 at the request of the Prime Minister.

Lord Forsyth of Drumlean: My Lords, is not one reason for the increase in food prices the EU's insistence that a proportion of our petrol be made up of biofuels, which is adding greatly to the cost of grain and to food shortages?

Lord Rooker: My Lords, there is no evidence of that at present and there is a good reason for the policy. However, all these policies are subject to review. I do not think that an argument can be made for food price rises in Europe resulting from biofuels, but it is slightly different in the United States.

Apprenticeships

Lord Cotter: asked Her Majesty's Government:
	What action they will take to increase the number of apprenticeships in the private sector to 400,000 per year by 2020, as recommended in the Leitch review of skills.

Baroness Morgan of Drefelin: My Lords, World-class Apprenticeships: Unlocking Talent, Building Skills for All, sets out the actions planned to deliver 400,000 public and private sector apprenticeships in England as part of meeting my noble friend Lord Leitch's recommendation of 500,000 UK apprenticeships by 2020. The key to this is establishing the National Apprenticeship Service in 2009. Apprenticeship policy is a devolved matter and decisions on apprenticeship arrangements in Northern Ireland, Scotland and Wales are matters for the devolved Administrations.

Lord Cotter: My Lords, I thank the noble Baroness for that Answer. Does she agree that the National Apprenticeship Service faces a big challenge, in view of the fact that in the private sector in this country there is only a 10 per cent take-up of apprenticeships, out of 1.4 million VAT-registered businesses? In view of that, the scheme has to be robust. Will the Minister assure us that there will be members on the board who have experience in the workplace so that they are able to represent, in particular, small businesses? Moreover, will small businesses be given the financial and other help they need? If so, in what way?

Baroness Morgan of Drefelin: My Lords, I am delighted to be able to reassure the noble Lord that the National Apprenticeship Service will mark a major step forward in the realisation of the development of apprenticeships throughout the UK. I have reason to be optimistic about this because the Government have seen the number of those successfully completing apprenticeships rise from 40,000 in 2001-02 to over 100,000 today. While we believe that there is reason to be optimistic, the noble Lord is right to say that this is a major challenge.

Lord Dearing: My Lords, the Minister said in her reply that the target included the public as well as the private sector. Can she make clear what specific action the Government have taken in connection with their Skills Pledge to encourage enterprises and concerns in the public sector to offer apprenticeships? Further, will she consider the extent to which young people in secure settings can be helped by public-sector employers to gain apprenticeships?

Baroness Morgan of Drefelin: My Lords, the noble Lord is extremely knowledgeable about these matters and he is absolutely right to draw attention to the important role of the public sector. As a Government we have to take the lead and put our own house in order because we do not do as well as we should. For example, in my department the Permanent Secretary, Ian Whatmore, is leading a government-wide initiative to make sure that we make our full contribution and that we expect to see new apprenticeships created in government, starting with at least 500 new apprenticeships this year. Moreover, in DIUS we aim to ensure that we have new apprenticeships beginning this year as well.

Baroness Verma: My Lords, can the Minister cite any hard evidence to show that targets have improved the quality of apprenticeships rather than simply increased the time needed for filling in forms by employers?

Baroness Morgan of Drefelin: My Lords, the noble Baroness asks a very interesting question. I argue absolutely that this Government have rescued apprenticeships from obscurity. We have seen an enormous change in the quality of apprenticeships; that is exemplified by the increase in the number of completions. We are looking for high quality apprenticeships where there is close involvement and which are employer-led. The noble Baroness is right to highlight that that is a challenge, but this Government take it very seriously and are prepared to invest by 2010 over £1 billion in making it happen.

Lord Campbell-Savours: My Lords, is not the real issue not the number of young people in apprenticeship programmes but that of quality? What consultation takes place of apprentices who have been through the system, many of whom complain about the inadequacy of training arrangements at the workplace and in colleges of further education?

Baroness Morgan of Drefelin: My Lords, my department takes very seriously the involvement of learners and students in the development of our policies. The noble Lord is right to highlight quality and to draw attention to the fact that in the past not all apprenticeships have lived up to the standards that we would expect, but we believe that access to apprenticeships will play a key role in achieving the kind of skills that we need in this economy to compete globally in the future. With the kind of work that the National Apprenticeship Service will make possible through the involvement of expert members on the board—I apologise for not picking up that question—and through the provision of services for small or medium-sized sized employers, we aim to get more apprenticeships with more employers in all sectors so we can deliver a practical vocational option for all young people who feel that they can benefit.

Baroness Howe of Idlicote: My Lords, I congratulate the Government on their action on apprenticeships. How many apprenticeships are being started and followed through in prisons? This group of people are among the least well educated and in need of the greatest support, and they could start important training while inside.

Baroness Morgan of Drefelin: My Lords, I apologise to the noble Baroness. That is a very good question. I do not have those figures in my brief, but I will write to her on the matter. I know that we have a Question coming up on that subject shortly.

Baroness Garden of Frognal: My Lords, given the lack of employer commitment to apprenticeships, what incentives might be offered through taxation, including perhaps tax breaks, which could be of particular help to small businesses?

Baroness Morgan of Drefelin: My Lords, my department is thinking carefully about the incentives that we can offer to employers. The most important incentive for taking part in an apprenticeship scheme is to ensure that the skills base of their business is improved. That is highly valuable to employers. We must remember that the training provided in association with apprenticeships is free to the employer. We are looking at what other incentives we can offer. We are going to pilot the question of direct payments and look at how that can particularly help small to medium-sized employers.

Health: Cousin Marriage

Baroness Deech: asked Her Majesty's Government:
	What steps they are taking to address genetic problems arising from marriages between first cousins.

Lord Darzi of Denham: My Lords, cousin marriage is a cultural practice common to a number of ethnic communities. The risk of having a child affected by a genetic disorder following cousin marriage is a complex and sensitive issue. The Department of Health has funded a number of initiatives since the 2003 genetics White Paper to increase the understanding and awareness of the possible risk in affected communities.

Baroness Deech: My Lords, I thank the Minister for that Answer. Given the general tolerance in the population of risk factors in birth, does he agree that it would be wrong to castigate cousin marriages, but that somewhere between the White Paper and the Harper review of a couple of months ago we have lost sight of the importance in this field, first and most important, of the training of genetic counsellors to deal with this sensitive issue; secondly, of school education about genetic risks; and, thirdly, of carrier matching and other non-invasive ways of testing for problems and possibly prenatal diagnosis?

Lord Darzi of Denham: My Lords, the noble Baroness makes an important point. I would like to put on record the Government's commitment to this. The role of the healthcare professional and of the Government is to provide support and advice to empower people to make informed choices based on clear information and advice. The healthcare professional's role is to allow the individual to assess these risks and to make their own decisions about what to do; it is not to tell them who they should marry. As a result the Government have made a significant investment in this field, not only in the training of genetic counsellors but in changing the curriculum of primary care colleagues with the collaboration of the Royal College of General Practitioners. We will see more and more genetic knowledge being disseminated through postgraduate education.

Baroness Barker: My Lords, is the department acting on the recommendation of the Genetic Interest Group that there should be collaboration between regional genetic centres, services for haemoglobin disorders and paediatricians in order to support, identify and offer appropriate counselling to at-risk couples?

Lord Darzi of Denham: Yes, my Lords, we are. I bring to the House's attention the review of Our Inheritance, Our Future. Published only last week, it refers to the consultation we have carried out since the White Paper was published with more than 50 different stakeholders, including scientists, professionals and patient groups, who overwhelmingly welcomed the progress and investment that have been made since publication. I will ensure that this document is made available to the House.

Baroness Symons of Vernham Dean: My Lords, in some parts of the world first-cousin marriages are very common, particularly in the Middle East. On a recent visit to Saudi Arabia I was struck by how much more openly the genetic issues arising from first-cousin marriages are being addressed and discussed. How much interchange is there with countries where this practice is widespread and how much co-operation on research or research projects is under way?

Lord Darzi of Denham: My Lords, I agree with my noble friend's comments. This issue affects more than 1 billion people around the globe, and 20 to 50 per cent of the marriages between them are consanguineous, most commonly between first cousins. There is collaboration in certain fields. It is important to realise that taking people's history into account is probably the best way to assess the risk of first-cousin marriages. As we know, there are more than 100 different autosomal recessive disorders. Collaborations exist whereby we can identify certain areas where we can counsel the patient and try to identify some of these risks through antenatal screening.

Lord Acton: My Lords, is my noble friend aware that my great-great-great-grandfather, Sir John Acton, the Bourbon Prime Minister of the Kingdom of the Two Sicilies, married his niece with the benefit of papal dispensation, and that their grandson was the first Lord Acton, who was a Liberal and not a Bourbon, and of whom the noble Lord, Lord McNally, thoroughly approves? From what has been discussed so far, I am not clear that there is a genetic risk. I hastily add that none of my nine brilliant brothers and sisters nor I is as clever as our great-grandfather.

Lord Darzi of Denham: My Lords, there is a risk but, as my noble friend suggested, it is very small. Communities that practise cousin marriages have twice the risk of having a child affected by inherited genetic disorder. The overall risk is still very low at about 4 per cent, whereas the risk in the general population is 2 per cent. To the list of the noble Lord's family I would add Albert Einstein and others, who were probably more mathematically inclined and were aware of the risks.

Lord Jenkin of Roding: My Lords, do the Government have any evidence whether there are any differences as regards the tendency of different ethnic groups to incur the risks of first-cousin marriage? I hope this will be a rather easier question to answer than the previous one.

Lord Darzi of Denham: My Lords, I am not aware of any differences between ethnic groups but I am aware of certain autosomal recessive disorders that might be higher in some ethnic groups. I will be more than happy to write to the noble Lord on one specific disorder which we see in Ashkenazi Jews and we screen for quite regularly.

Lord Dholakia: My Lords, what is being done on health education in communities where such practices are prevalent? What advice is being offered to entry clearance officers abroad regarding cases where such marriages may be used for the purpose of entry to the United Kingdom?

Lord Darzi of Denham: My Lords, the department has funded two projects that have looked at ways of raising community awareness of genetic risk. In Blackburn, a genetic counsellor worked with families who already had an affected child in order to raise understanding of future risks for the family and then worked through the family to offer services to other relatives concerned about their own risks. In Leicester, the local genetics service worked with community groups to raise awareness of the possible risks and the availability of a local specialist genetic service to provide advice and information. Local health services in Bradford also have plans to develop community outreach work to raise awareness, particularly in communities at higher risk.

Lord Campbell of Alloway: My Lords, on the genetic problems arising, could further attention be made to the welfare and education of the children involved?

Lord Darzi of Denham: My Lords, as awareness of the risk is disseminated among communities that are at a slightly higher risk, I am sure that that process of information dissemination will be inherited through the children.

Parliament Square

Baroness Trumpington: asked Her Majesty's Government:
	Whether they have made any representations to Transport for London on plans to change the road traffic arrangements for Parliament Square.

Lord Bassam of Brighton: My Lords, the proposed changes to Parliament Square under the World Squares for All project are the responsibility of the Mayor of London and Westminster City Council, as highway authority. The Government continue to work alongside Transport for London as the proposals for this scheme take shape.

Baroness Trumpington: My Lords, I suppose that I thank the noble Lord for that reply. Will the relevant authorities continue to make sure that taxis are available for those of us who depend on them to get to Parliament? Also, on parking outside St Margaret's Church, will this amenity still be available for brides and mothers-in-law to be picked up and put down, as well as disabled and important mourners following memorial services at the church?

Lord Bassam of Brighton: My Lords, I am most grateful to the noble Baroness for the questions. Obviously taxi access is essential to the Palace of Westminster. These plans are work in progress. Clearly the concerns of the bereaved going to services will have to be properly considered. I am sure that the scheme, which is being consulted on, will protect the interests of those who need immediate access to all the relevant buildings.

Lord Wallace of Saltaire: My Lords, this is a great opportunity to transform the whole environment around the British Parliament. I assume that not just the Government but Parliament as a whole will have some strong opinions about what is offered. Some of us think that closing two sides of the square rather than one would create an enormous opportunity to have a large public space. Even what was achieved in Trafalgar Square with the closure of one side was rather impressive. Surely the Government have a positive view on this and ought to express it vigorously to Westminster City Council, which appears to regard the interests of the inhabitants of the houses around Smith Square and between Smith Square and here as rather more important than the wider interests of reshaping the environment for the Palace of Westminster.

Lord Bassam of Brighton: My Lords, the noble Lord is right to draw attention to the success of the Trafalgar Square scheme. The Government are involved in discussions and the Palace of Westminster authorities are represented on the World Squares for All steering group. The views expressed by the noble Lord are very helpful, and I will certainly ensure that they are passed on.

Lord Berkeley: My Lords, can the Minister say how long this has been going on? I recall that this discussion started about eight years ago, when some noble Lords and I were shown lovely plans of what might happen in Parliament Square. If the mayor and Westminster City Council have taken eight years not to agree, when will something happen? Will our grandchildren be the first to see a result?

Lord Bassam of Brighton: My Lords, discussions about Parliament Square have been going on ever since Sir Charles Barry designed the first layout back in 1868. I am sure that there is a great sense of urgency in the mayor's office, as noble Lords will understand. This has to be resolved for the Olympics and the Paralympics in 2012.

Baroness Gardner of Parkes: My Lords, does the Minister agree that, although the reorganisation of Trafalgar Square, which is a much larger square, has improved public access, it has made things for traffic completely impossible? Also, my noble friend Lady Trumpington asks me to remind him that he did not answer her question about St Margaret's Church.

Lord Bassam of Brighton: My Lords, I beg to differ with the noble Baroness. I thought I had said that—

Noble Lords: No.

Lord Bassam of Brighton: My Lords, I shall repeat some of what I said. I am sure that the interests of mourners and visitors to the church will be properly considered and fully taken into account. Public authorities are spending a lot of time working up plans and procedures. All noble Lords should have received information about the proposals on offer. I think that there will be long-term improvements to traffic flow around the square if the plans that I have seen are brought into effect.

Lord Foulkes of Cumnock: My Lords, will my noble friend ensure that any changes make it easier for Members of this House who have offices in the buildings on the other side of the road to get here for Divisions? All the changes that have taken place recently, both to traffic control and, above all, to security, have created an obstacle course for Members to get here in time to vote.

Lord Bassam of Brighton: My Lords, if these plans come to fruition, there should be an 80 per cent reduction in traffic flows in front of the parliamentary buildings, so it should be much easier for those who work in buildings outside the parliamentary estate to make their way into the building for Divisions.

The Earl of Onslow: My Lords, judging by the waffle that has come out of the Minister, should we not just wait for Boris on 1 May?

Lord Bassam of Brighton: My Lords, I have tried to give pretty precise answers to questions. I have told the House that there have been discussions since 1868, I have explained the position with the church and I have made it painfully obvious that the parliamentary authorities are involved in detailed discussions. The worst possible thing for London would be the election of Boris Johnson.

Earl Attlee: My Lords, I hope that the Minister thinks that my noble friend Lady Trumpington was right to ask this Question. Can he explain why, over several years, the Government have failed to have Mr Brian Haw's rubbish removed while at the same time they have penalised decent and reasonable protesters in Parliament Square?

Lord Bassam of Brighton: My Lords, the presence of protesters on the pavements on the edge of Parliament Square is a matter for Westminster City Council. Mr Haw has a right to protest and that right has been enshrined and protected. While one may disagree with the particular views of an individual, they have a right to make those views known.

Baroness Golding: My Lords, I declare an interest: I live on the corner of Great Peter Street, Great Smith Street and Marsham Street. Last year, when Parliament Square was closed, there was chaos. Does the Minister agree that the problem concerns not only Parliament Square but the surrounding area?

Lord Bassam of Brighton: My Lords, my noble friend is right to draw attention to traffic problems in the area. We have something like 33 million pedestrian visitors to Parliament Square, of whom fewer than half a million ever make it to the centre. There is a strong view that opening it up and making pedestrian access possible from the south side would greatly improve the environment.

Business

Baroness Royall of Blaisdon: My Lords, my noble friend Lord Davies of Oldham will repeat a Statement on financial stability as soon as possible after 3.30 pm.

European Union (Amendment) Bill

Baroness Ashton of Upholland: My Lords, I beg to move the Motion standing in my name on the Order Paper.
	Moved, That it be an instruction to the Committee of the Whole House to which the European Union (Amendment) Bill has been committed that they consider the Bill in the following order:
	Clauses 1 to 3 The Schedule Clauses 4 to 8.—(Baroness Ashton of Upholland.)

On Question, Motion agreed to.

Criminal Justice and Immigration Bill

Lord Hunt of Kings Heath: My Lords, I beg to move that the Bill be now further considered on Report.

Moved accordingly, and, on Question, Motion agreed to.
	Clause 21 [Credit for period of remand on bail: terms of imprisonment and detention]:

Lord Henley: moved Amendment No. 62:
	Clause 21, leave out Clause 21

Lord Henley: My Lords, I shall speak also to Amendments Nos. 63 and 64. These amendments would simply leave out Clauses 21 to 23. My noble friend Lord Kingsland spoke to these briefly on one of the latter days in Committee back in February, at some relatively late time of night: I think that it was at 9.25, after dinner. He did not move them on that occasion, but he set out our case. The Minister assured the Committee at that time that the Government were, as he described it,
	"on a roll at the moment".—[Official Report, 26/2/08; col. 642.]
	I do not know whether they still are; they can tell us that later, but I can assure him that we will certainly want to divide on this in due course.
	These clauses amend the 2003 Act to provide for creating a,
	"period of remand on bail",
	on an electronically monitored curfew, and to take that against a subsequent sentence. Put very simply, we believe that this is loopy, and I suspect that most of the population would agree that it is mad. The Government are saying, briefly, that while someone is at home on an electronic curfew—as long as they are there for more than nine and a half hours, I think—and sitting or lying in bed there, perhaps watching "Match of the Day", or "I'm a Celebrity, Get Me Out of Here!", or possibly even a party political broadcast from the party opposite, that time shall be taken into account in any subsequent custodial sentence. As I say, that is loopy and most people would think it mad. It is not the right way to go about it.
	We know exactly why the Government are doing this; to reduce artificially the number of people in prison. That is a perfectly laudable ambition—there is nothing wrong with the idea of trying to reduce that number—but we do not happen to think this is the right way to go about it. When he responded to this matter back on 26 February, the Minister said that credit is not being given on the basis that defendants have been denied their liberty, but rather that they have complied with their bail condition while on curfew. Well, that is not how most of us see it. We understand perfectly well that if someone is properly locked up and on remand, it should be taken into account, but not when they are at home on electronic curfew watching "Match of the Day" or whatever, as I said.
	Further, as my noble friend made quite clear, there is the possibility of perverse incentives, as in the position where defence solicitors could ask for a longer curfew period just to make sure that the custodial sentence was likely to be reduced because, as he put it, it covered more than the eight and a half hours, or whatever the limit was. We would have defence counsel arguing for a longer curfew period than he would otherwise think necessary purely to get time off for his client on a later occasion.
	As I said the Minister thought that he and the Government were on a roll when they dealt with this issue last time. It might have been because we had just had one of those Divisions that sometimes happen late at night that the Government had managed to win. On this occasion, I will listen carefully to what the Government have to say but unless the Minister can come up with better answers than he did before I will be tempted to test the opinion of the House again. I beg to move.

Lord Hunt of Kings Heath: My Lords, I am most grateful to the noble Lord, Lord Henley, for allowing us to discuss this matter again. I shall not tempt fate by describing why I said we were on a roll when we debated it last time. The noble Lord is right that the measure comes as a result of the review of prisons by the noble Lord, Lord Carter, and it is one of the steps that we would like to take to help manage demand for prison places. We have discussed prisons for some weeks now, and noble Lords will know of the challenge of the current demand for prison places. The Carter proposals are a mixture of an expansion of places over the next few years, together with what is described as demand management. Our proposal is one of those initiatives to reduce demand for prison places.
	I confirm to the noble Lord that to qualify for the curfew credit, defendants must have been subject to an electronically monitored curfew for at least nine hours per day to reflect the position that being subject to a curfew does not equal a deprivation of liberty, whereas remand to custody clearly does. Each curfew day will provide potential credit against sentence of no more than half a day. The court will be required to take into account the defendant's compliance with the curfew when deciding the period to be credited. The credit will not be made on the basis that the defendants have been deprived of their liberty; they will be credited for the fact that they have complied with their bail conditions while having their liberty restricted on a preventive rather than punitive basis. The credit will be made on the basis that even though being under a curfew is less arduous than being remanded in custody, both are intended as a preventive measure designed to secure the judicial process rather than to punish the offender. The provisions will apply only to defendants bailed under the Bail Act, as amended by the Bill, who are subject to an electronically monitored curfew bail condition of at least nine hours per day.
	I know that the noble Lord, Lord Henley, feels that this is a reward to watch "Match of the Day", but it is not. The curfew times and hours will be decided by the court, which will take into account the nature of the bail represented by the defendant. Of course, the curfew may be imposed for periods when the defendant is considered more likely to offend or to interfere with witnesses. Such periods might often be during the evening and into the early hours when defendants can get into trouble after a night out at the pub. That is why typical curfew hours tend to be overnight. The curfew can be tailored to cover other risks. For example, the court could curfew a football hooligan during match times or a shoplifter during peak shopping hours.
	On the question of a perverse incentive, we believe that this is a sensible preventive measure that will provide an incentive to those remanded on bail who are subject to an electronically monitored curfew to comply with their conditions. Of course in relation to the perverse incentive that is where I would rely on the discretion of the sentencer to arrive at the right decision. Given all our debates on the question of the discretion of the judiciary, surely the noble Lord, Lord Henley, could rely on that.

Baroness Butler-Sloss: My Lords, will the Minister say what he means by that? Subsection (2) of proposed new section 240A, states that,
	"the court must direct that the credit period is to",
	be taken into account. Does that mean that the Minister has in mind that the judge might impose a longer sentence than otherwise to allow for a sufficient period in prison, in which case he would probably be breaching the sentencing rules?

Lord Hunt of Kings Heath: My Lords, I am sure that is right. I thought the noble Lord, Lord Henley, was suggesting that, in certain circumstances, defence lawyers would request particular conditions because it would then lead to a certain time being taken off the defendant if subsequently convicted. I was answering that point.

Lord Lloyd of Berwick: My Lords, I would have more sympathy for the noble Lord's amendment if I knew what the Conservative Party proposes to do in order to reduce the present overcrowding in prisons. Everything that has so far been proposed by the Government to this end has been opposed by the Conservatives. It would be helpful if they could put something positive in its place. In the mean time, this seems to be moving in the right direction; therefore I oppose the amendment.

Lord Henley: My Lords, the Minister cited, in support of his arguments, the Carter review of prisons, which he described as a mixture of expansion of places and a degree of what he described as "demand management." We have supported—or supported in part—the expansion of places; we certainly object to the idea of Titan prisons as part of that expansion. I would paraphrase "demand management" as letting out early slightly more people than they should, which is a mistake, and keeping people out who should possibly be in, which this is a measure of. It is not the right way to go about it. It is not right that someone who is, admittedly, confined to home, but having rather a comfortable time, should have that time taken into account if he receives a custodial sentence later on. No doubt, if he is a football hooligan, he is still able to watch television. That is why this particular case is the wrong way to go about it and why I intend to press this amendment and seek the opinion of the House.

On Question, Whether the said amendment (No. 62) shall be agreed to?
	Their Lordships divided: Contents, 112; Not-Contents, 132.

Resolved in the negative, and amendment disagreed to accordingly.
	Clause 22 [Credit for period of remand on bail: other cases]:
	[Amendment No. 63 not moved.]
	Clause 23 [Credit for period of remand on bail: transitional provisions]:
	[Amendment No. 64 not moved.]
	Clause 26 [Release of certain long-term prisoners under Criminal Justice Act 1991]:

Lord Bach: moved Amendment No. 65:
	Clause 26, page 18, line 8, at end insert—
	"(1C) The reference in subsection (1B) to an offence specified in Schedule 15 to the Criminal Justice Act 2003 includes a reference to—
	(a) an offence under section 70 of the Army Act 1955, section 70 of the Air Force Act 1955 or section 42 of the Naval Discipline Act 1957 as respects which the corresponding civil offence (within the meaning of the Act in question) is an offence specified in that Schedule, and(b) an offence under section 42 of the Armed Forces Act 2006 as respects which the corresponding offence under the law of England and Wales (within the meaning given by that section) is an offence specified in that Schedule.
	(1D) Section 48 of the Armed Forces Act 2006 (attempts, conspiracy etc.) applies for the purposes of subsection (1C)(b) as if the reference in subsection (3)(b) of that section to any of the following provisions of that Act were a reference to subsection (1C)(b)."

Lord Bach: My Lords, I shall speak also to Amendments Nos. 66A to 66H, 115G, 115H, 115L, 115M and 115N. These amendments are miscellaneous minor and technical amendments to the release and recall provisions in Clauses 26, 29 and 32 as well as Schedules 26 and 27. I am of course happy to provide details if required but I do not want to unnecessarily detain the House with what are, in effect, minor amendments. I beg to move.

On Question, amendment agreed to.

Financial Stability

Lord Davies of Oldham: My Lords, I beg leave to repeat the Statement on financial stability made in another place by the Chancellor of the Exchequer.
	"With your permission, Mr Speaker, I should like to make a Statement about this morning's announcement by the Bank of England to improve conditions in the financial markets. The scheme has been developed following extensive discussions with the Treasury and the Financial Services Authority.
	"I also want to report on the recent G7 meeting in Washington on restoring financial stability to financial markets. I will also report on measures we are taking here at home to strengthen the stability of the banking system, as well as to help homeowners with their mortgages.
	"Before I set out in further detail the Bank of England's special scheme, let me remind the House of the background against which it has been developed.
	"The financial markets throughout the world remain turbulent, following the problems that arose in the US housing market last year. Functioning financial markets rely on banks and building societies being able to raise finance from each other—and from other investors—including through securitisation markets and inter-bank lending markets. These funds can then be used to finance lending to businesses and consumers, including for the provision of mortgages.
	"But global financial markets are not currently functioning normally. Across the world there is a lack of confidence in credit markets—most notably mortgage-backed securities. That lack of confidence was prompted by the downturn in the US housing market and in particular by the problems associated with sub-prime mortgages there. Banks are reluctant to lend to each other, and as a result lending to customers is more expensive and more restricted.
	"Along with other central banks, the Bank of England has over the past few months made additional funding available to the markets through its regular market operations. The UK financial system remains fundamentally strong and the Bank of England's action has helped to take some of the pressure out of the system by giving the banks additional liquidity to continue their usual banking operations. Last week, it made a further £15 billion available, over three months, as part of its open markets operations. And the governor has said that he is committed to providing the liquidity assistance that the system as a whole needs to function normally.
	"Here at home, the economy continues to grow. Last week's figures confirm that unemployment remains low and employment high. That and the recent interest rates cut will provide wider support for the housing market and the wider economy.
	"As banks here and across the world disclose their losses and strengthen their financial positions, which will help to rebuild confidence, the Bank of England can now take action to ease conditions in the financial markets, particularly in relation to mortgage-backed securities.
	"The special scheme announced by the Bank of England today is a further step towards tackling these problems, which have become more evident in recent weeks, with the increasing cost and decreasing availability of lending by banks and building societies.
	"Under the new scheme, for a six-month period, the banks and building societies and other institutions that are eligible for the Bank's standing facility will be able to enter into agreements with the Bank of England under which they exchange high-quality asset-backed securities for Treasury bills. They can then hold these bills or trade them in the markets. Each exchange agreement will be for a maximum of a year, but can be renewed at the Bank's discretion, so that the exchange could ultimately be for up to three years.
	"The arrangement is available only for assets existing at the end of December and does not apply to new lending since then. At the end of the scheme, the banks will return the Treasury bills to the Bank of England, and will receive back the securities which they had provided as collateral. This means that the banks will continue to hold the risk on the securities they provide, so it is them rather than the Bank of England that will be exposed to any fall in value.
	"At all times, the banks must provide as security to the Bank of England assets worth significantly more than the Treasury bills they receive in return. If the value of their assets falls, the banks must provide more assets to the Bank of England or return some of their Treasury bills. They will be charged a commercial rate, so there is no subsidy to the banking sector.
	"The Bank of England expects the initial take-up to be £50 billion. It will monitor the position daily, both to check new bids from the banks and to track the value of the assets exchanged as collateral. The
	"The Treasury is supporting the scheme announced by the Bank of England by lending to it—at a commercial rate—the Treasury bills that they will then exchange with the banks and building societies. As the House will know, the Government stand behind the Bank as its sole shareholder and we are making this clear by providing an indemnity. The Bank of England believes that these measures will support the banking sector during the present period of uncertainty and will help to restore the stability that the financial markets need, both now and in the longer term. This will help alleviate the problems that have seen banks reluctant to lend to each other, and in turn support the provision of new mortgage lending.
	"Maintaining economic and financial stability is the Government's key priority. In addition to the Bank of England's announcement, I confirm to the House that the Government will take further action, at home and internationally, to restore stability in financial markets. It is important that banks continue to make full disclosure of their exposure to losses and do so as soon as possible. That is why, at the G7 and IMF committee meetings in Washington, we agreed that banks should be as open as possible, as quickly as possible, in order to remove the continuing uncertainty as to their true positions. This process has started throughout the world, including here in Britain, with banks disclosing their losses and making proposals to rebuild their capital positions. Transparency is an essential part, along with other steps we are taking, of stabilising financial markets.
	"In Washington last week, the Financial Stability Forum agreed a range of actions, some to be implemented in the next three months, others in the longer term. We agreed to strengthened oversight of risk management, including capital and liquidity; clearer standards for valuation and transparency; and changes in the role and use of credit ratings. We will strengthen international co-operation, so that we are better able to prevent crises and deal with problems that occur. We are also working with the IMF to allow it to play a greater role in providing an early warning of threats to financial stability, so that the relevant authorities can take early action to prevent these actions in the future.
	"Here at home, we are about to finish consulting on the reforms to the banking system that I announced in January. These reforms will make it easier to intervene in the event that a bank gets into trouble, in order to protect depositors and maintain the stability of the financial system. Because it is important that we get this right, I will continue to hold further discussions with the industry on the detail of these proposals before bringing forward legislation. We will also make changes to the Bank of England to emphasis its role in maintaining financial stability. The responses we have received so far to the consultation have made it clear that, given the importance of these reforms, it is crucial that we have further discussion. Once that is completed, I can confirm that it remains our intention to introduce legislation this Session to strengthen financial stability and depositor protection. The legislation needs to be on the statute book early next year, when some provisions of the Banking (Special Provisions) Act are due to expire.
	"Finally, we are determined to do everything we can to help homeowners, so I am meeting the Council of Mortgage Lenders, the Finance and Leasing Association and major lenders tomorrow, along with the Chief Secretary to the Treasury and the Housing Minister. Since 2004, mortgage lenders have been required by statute to treat their customers fairly, and at our meeting I will be discussing how banks and building societies can help people whose fixed rate mortgages are coming to an end, as well as helping people who may get into difficulties in repaying their mortgages. Banks and building societies have a duty to treat their customers fairly and, in the light of everything we are doing with them, I want to discuss with them how they can pass on the benefits of falling interest rates, as well as wider government support to mortgage holders. The Government will continue, along with the Bank of England and the Financial Services Authority, to do everything they can to maintain stability.
	"The announcement by the Bank of England this morning will help to resolve the problems in the wholesale financial markets, with their subsequent impact on the retail markets—so helping business, individuals and, in particular, the mortgage market. I commend this Statement to the House".

Baroness Noakes: My Lords, I thank the Minister for repeating the Statement made in another place. We support the principle of the Bank of England making greater liquidity available to banks. My honourable friend George Osborne has been calling for the use of a wider range of securities within Bank of England facilities, so this move is welcome.
	It has taken the Government and the Bank a long time to get to this position. The US Federal Reserve Bank liberalised its collateral requirements over a month ago, and in the UK the various attempts to date to inject additional liquidity have achieved little, and LIBOR has remained stubbornly high even when the bank rate has been reduced.
	In general, the UK has been behind the pace in dealing with the credit crunch as it has unfolded. The Minister will need no reminding that the Government's dithering over Northern Rock was in large measure responsible for the end result; a nationalised bank with a £100 billion balance sheet underwritten by the taxpayer. We have no timetable for the so-called temporary ownership to end that, so the taxpayer will be standing behind that balance sheet for some time to come.
	I mention Northern Rock to put today's announcement of a further £50 billion in context. It looks rather modest. Furthermore, I understand that the total amount of bank and building society debt that needs to be refinanced this year could be as high as £750 billion, so there has to be a serious question over whether today's move will be sufficient. The Statement implies that the £50 billion facility may be increased. Under what circumstances will the Bank of England extend the facility beyond the first £50 billion? What will trigger this? Will Parliament be informed?
	The Government's spin on today's news is that it will help those with mortgages. The Statement referred to tomorrow's meeting between the Chancellor and the Council of Mortgage Lenders as if that will solve some of the difficulties facing lenders and borrowers. The Chancellor needs to be aware that the Council of Mortgage Lenders' response to the Bank's announcement this morning was:
	"The recent trend of mortgage products being removed and mortgage prices increasing for new customers will be affected more by how LIBOR responds to the announcement. The improved liquidity is unlikely to reverse the trend to higher mortgage costs we have seen in recent weeks".
	No joy there, then. The Financial Times Alphaville site said:
	"The spin may be about the housing market. But this is really about the money markets".
	The cost of the Special Liquidity Scheme is linked to LIBOR, but LIBOR is part of the problem of rising mortgage interest rates. Can the Minister explain how a LIBOR-related lending facility will help the mortgage market? There is no requirement for the banks to use the proceeds from this facility to reinvest in residential mortgages, so if the Government really have an objective of supporting the mortgage market, how will they ensure that they get value for money from taxpayers' backing of this new facility?
	The "haircuts" that the Bank proposes to use are very large. In the extreme case, a fixed interest rate, 10 to 30-year own name covered bond for which no market price is observable, denominated in euros or dollars, could pick up a haircut of 35 percentage points. Haircuts are a way of expressing risk. Can the Minister explain how the Government and the Bank have arrived at their risk percentages? Does this represent a view that the mortgage market in the UK and the rest of the EU is carrying risks of up to 35 per cent in loss of value?
	Let me be clear, we support the prudent use of taxpayers' money, and if 35 per cent is the Government's appraisal of risk, that is what should drive the haircuts; but the Government must come clean on their risk assessment. Will the Minister tell the House what view the Government have on the risks inherent in the current mortgage book of UK banks and building societies and their European counterparts?
	The eligible collateral is restricted to AAA-rated securities, but the Government have been critical of the rating agencies. The Prime Minister said that we need to,
	"sort out the credit rating agencies and the mistakes that they have made".
	What changes have been made to sort out the credit rating agencies to stop them making mistakes? I am not aware of any changes, so what credence can we place on the AAA ratings that are required? Is this a tacit acceptance that the Government can come up with no better way of appraising the quality of the securities that taxpayer money will be backing?
	The eligible securities within the special liquidity scheme seem on the whole to be sensible, and we support the exclusion of securities linked to US mortgages, but can the Minister explain the inclusion of credit card-backed securities? Why have the Government allowed US credit card-backed securities to be included? What is the rationale for excluding US mortgages but including US credit card debts?
	Will the Minister say how the Bank of England is going to make sure that this new facility is propping up sound banks and not another Northern Rock? The Financial Services Authority is responsible for banking regulation and the Bank has little information about individual banks. Will the Bank be carrying out due diligence on banks before it agrees to deal with them at the window? Does the FSA have any role in this? If it does, how can the Bank and the Government be sure that the judgments made by the FSA are sound, especially given the outcome of the report on its disastrous handling of Northern Rock?
	Tackling inter-bank liquidity is important but so too is the strength of banks' balance sheets—the Minister referred to this in his Statement. We have heard about the possible rights issue by Royal Bank of Scotland. What are the Government and the FSA doing to ensure that banks play their part in strengthening their balance sheets, whether through additional capital or retained profits? We heard in the Statement about international discussions, but what practical steps are the Government taking in this country?
	This announcement is a helpful step forward. It remains to be seen whether it will have the effects that the Government desire and it raises as many questions as it answers. I hope that the Minister will answer the questions that I have put to him.

Lord Newby: My Lords, I, too, thank the Minister for repeating the Statement. I think that all noble Lords would agree that we are now in a rather bizarre situation. After years in which the banks were trying to persuade all of us to take out bigger and bigger overdrafts, the Government have now in effect created a massive overdraft facility for the banks. We are seriously concerned that in doing so the Chancellor has exposed the taxpayer to the risks of a massive bank bail-out.
	As to how we got to this position, a number of things are clear. The banks have in some respects been helpful about it. By their own testimony through their representative body, the Institute of International Finance, they have been guilty of,
	"major points of weakness in business practice",
	including massive levels of pay, bonuses up to 10 times basic salaries and serious shortcomings in the management of risk. They are not simply passive victims of bad luck. British banks lent too much too quickly and too carelessly. The big losses with which they are now faced must be identified by them and then covered by bank shareholders. That is the way in which trust will be restored and interbank lending resumed at acceptable levels. However, it is clear that going back to the shareholders is an extremely unpalatable option for many bank executives, not least because they fear that they may lose their jobs if they do. It is much easier to go to the Government and get a bail-out from them.
	The Chancellor has pointed out that the taxpayer is protected because bank assets will be transferred at a discount. The noble Baroness asked a number of questions about this, but we need to know how big a discount we are talking about. Given that the IMF has judged that the housing market may be 25 per cent to 30 per cent overvalued, any discount of less than 30 per cent appears at face value to place the taxpayer at significant risk. Can we therefore have an assurance that the discount will be at least at that level? The Bank of England has said that it expects that the initial take-up will be £50 billion. Is there any sense anywhere of what the final take-up will be? Have the Bank and the Government in effect given an open-ended commitment that they will make available as much money as the banks need?
	If there is to be any departure, as it appears there may be, from the traditional terms on which the Bank of England lends to the banks, it is only reasonable that new tough and binding conditions should be placed on the banks rather than the extremely vague assurances about future behaviour that we have heard today. We suggest three conditions for the new facility. The first is that bank shareholders, not the taxpayer, should pay for the losses from previous bank lending. This means rights issues to raise shareholder capital. It appears that the Royal Bank of Scotland is taking the lead in taking such a step, but our view is that other banks should be eligible for funding from this source only if they also commit themselves to the same course of action. Otherwise, the banks simply pocket the Bank of England's money to boost their reserves rather than lending it on.
	Secondly, the banks must be willing to sign up to a set of procedures that prevent large-scale repossessions and that are binding not only on the larger and more socially responsible banks, which would probably do this anyway, but on every bank that takes advantage of this facility. We are grateful that the Government at least now acknowledge for the first time that there may be a repossession problem, but it is important that, having acknowledged it, they work with the banks to ensure that repossessions are kept to a minimum.
	Thirdly—this is a more long-term point—surely boom-and-bust lending cycles must be countered in future by more proactive intervention by the Bank of England that requires the banks to hold higher reserves during boom periods. The Government cannot prevent the current housing bubble from bursting, but they must ensure that these bursts of irresponsible lending do not happen again.
	The Bank of England is giving generous support to help banks to get out of a mess that is entirely of their own making, but the banks must now take the firm action that is needed to return to sound banking practices to ensure that they do not repeat the excesses of recent years.

Lord Davies of Oldham: My Lords, I am grateful to the noble Baroness, Lady Noakes, and the noble Lord, Lord Newby, for their comments on the Statement. On this occasion, I am particularly grateful to the noble Baroness, who both prefaced and summed up her remarks by saying that she supported the Bank of England's initiative. I will endeavour to answer her requests for reassurance as fully as I can.
	The principle is important. I understand the general anxieties expressed by the noble Lord, Lord Newby, but I thought that I had made it clear in my Statement, as I will seek to do when I refer specifically to the questions asked by the noble Baroness, that the Bank is taking scrupulous care to ensure that the banks, not the taxpayer, will take responsibility for the situation in which they find themselves. The Bank of England will ensure that the collateral that is provided is in excess of the resources made available to the banks in order to ensure that there cannot be a bill at the end for the taxpayer. That is the principle on which the scheme will operate. In articulating that obvious anxiety, which the Government share and which the Bank of England has taken care in its proposals to allay, the noble Lord should accept that the risk will be taken by the banks and their shareholders and not by the British taxpayer. I emphasise that point particularly as it is the principle that underpins the scheme.
	I also hear what the noble Lord says about the mortgage market and the difficulties that individuals are in. That is exactly why my right honourable friend the Chancellor is holding meetings tomorrow with the mortgage lenders. He will discuss with them the impact of the tightening position on credit, particularly as it affects those on fixed-term mortgages that are coming to an end. It is expected that these discussions will be fruitful on how we can enhance protection for banks and building societies so that they can offer various strategies to mortgage lenders to help to minimise repossession. The noble Lord will recognise that repossession levels are low in comparison with the housing crisis in 1991. Nevertheless, they are increasing and any increase is worrying. It is important to have strategies that reduce the likelihood of repossession. I want to assure the noble Lord on that.
	The noble Baroness asked me a number of questions and made a number of statements, one or two of which I felt were a shade controversial. I do not accept that there was dithering over Northern Rock. As we discussed at the time—

Noble Lords: Oh!

Lord Davies of Oldham: My Lords, if noble Lords opposite had been able to identify dithering, they would also have been able to produce a solution that the Government could have adopted at that time. However, they clearly did not, unless this side of the House is being asked to believe that noble Lords opposite—not too explicitly, but secretly—hoped for the early public ownership of Northern Rock, which is a contention that I find somewhat dubious, to put it at its mildest. Noble Lords opposite only ever emerged with the suggestion that Lloyds TSB had a proposal way back last August that would have solved all the problems. Such a proposal would have fallen at the first fence of state aid in Brussels. It was never realistic. Therefore, anyone who believes that noble Lords opposite, their party or their leadership in the other place have ever put forward a credible proposition to deal with the situation earlier than we did, under the terms that we have and guaranteeing stability for the bank and the wider financial system, is living in cloud-cuckoo-land. Noble Lords opposite can make those contentions but those contentions are treated outside with the derision that they deserve.
	Nevertheless, the noble Baroness was right to ask me about the relationship between improved and increased liquidity, the mortgage market and the position for the ordinary mortgage holder. We have two objectives. One is to secure financial stability so that the banks can carry out interbank trading, which we all recognise is restricted in a way that is causing grievous difficulties for all forms of credit. But there is a particular problem for the mortgage market and mortgage holders, which is why the Chancellor has made it absolutely clear that he is taking additional measures on this and why we are having discussions with mortgage lenders tomorrow.
	There will be a second broad outcome from these proposals beyond the improvements in financial liquidity that will feed through the system and improve the capacity for loans at lower rates. In addition, there is a specific problem for mortgage holders and a short-term problem for many as their mortgage terms come to an end, which is why we are holding discussions with mortgage lenders to seek to make provisions that take into account the short-term needs of such individuals.
	The noble Baroness asked about credit rating. She will appreciate that there is no instant solution to the issue that some triple-A credit rating worldwide has looked considerably more dubious than would have been anticipated. That is why we intend to take action on credit rating. However, it is a worldwide issue, which is why what action to take is being discussed at the international level. The problem is not easy to resolve. Given that, while the noble Baroness has the right to ask me the question, she is also obliged to recognise that there is no flip answer.
	So far as the Bank of England is concerned, it will be necessary for it not only to take as collateral only that which is highly rated according to existing credit rating, but in addition to become involved in further searches beyond that. The Bank cannot automatically assume that a triple-A credit rating provides the safeguard and benefit that otherwise we would have hoped it did. In other words, the Bank is all too well aware of the issue. When taking these positions as collateral, it will be obliged to examine them with the greatest care—and that applies to all the other aspects of credit rating. The noble Baroness referred in particular to credit card-backed securities. Some of those can be entirely secure, and the Bank of England will be reassured on that front. Where there are doubts, the Bank has made it clear that, when it takes more collateral, the value of that collateral will be higher than the resources that it makes available in order to safeguard the public and the taxpayer against any default.
	The noble Baroness asked me a number of other pertinent questions. She emphasised her concern about the rise in assessments for haircuts. We all know that this is an important aspect of the scheme, so I say to her only that the Bank of England, which is used to managing these issues, will need to take great care in this area. It is the Bank's business to do so. I emphasise that this is a Bank of England scheme in which the Bank takes responsibility on behalf of the public for the assessments that it makes on the scheme's operation. The noble Baroness asked how the FSA can be trusted in its role, given its past record. I hope that she and her colleagues will pay due regard to the action taken by the FSA to improve the quality of its work.
	I apologise to the House. The noble Baroness asked me a volley of questions, but I have exceeded my time and I must abide by the rules of the House. I therefore also apologise to the noble Baroness and undertake to write to her on the points that I have not covered.

Lord Barnett: My Lords, the Chancellor is to see the banks and mortgage lenders tomorrow, so perhaps I may raise a number of points that might be put to them. For example, should we not also be talking to the accountancy bodies? Has my noble friend noticed that the banks, which I agree should be more transparent, published accounts with clear audit certificates but within a short time of doing so wrote off billions of pounds? Can he try to find out why a clear audit certificate was given? Moreover, is he aware that mortgage lenders are charging householders up to £1,000 for renewal of mortgages? That surely seems excessive, although perhaps he should also talk to solicitors about their charges; here I beg the forgiveness of many in your Lordships' House. There is one other point that the Chancellor may think worth considering during his discussions with mortgage lenders. The point about repossessions was made by the noble Lord on the Liberal Democrat Front Bench. Will the mortgage lenders be able to give any assurances on that front during the meeting tomorrow?

Lord Davies of Oldham: My Lords, one of the crucial issues to be discussed tomorrow is how action can be taken by mortgage lenders to limit repossessions to the absolute minimum. We all recognise that there may be circumstances in which houses need to be repossessed; we also recognise that that cuts off the flow of repayments from the individuals concerned when it is better for society for them to retain their homes and perhaps to have temporary assistance until circumstances improve and they are able to resume repayments. These issues will be discussed with mortgage lenders tomorrow.
	On the more general issue of what is wrong with a range of professions and professional activity in our society, I am not sure how much of that can fall within the framework of this rather humble Statement, but I hear what the noble Lord says that part of our difficulties may have occurred from the fact that the audit of banks has been less rigorous than it might have been. I also hear that his next target may well be solicitors who arrange mortgages. But sufficient unto the day is the evil thereof. I have already indicated what action the Government intend to take on the broad issues consonant with his statement.

Lord Higgins: My Lords, would it not clarify these matters if, instead of talking about billions, the Government were to talk about hundreds or thousands of millions, or, better still, what the figure represents in any given case to an average taxpayer? As the banks cannot get rid of their mortgage-based assets because other banks do not believe what they say they are worth, how will the Bank of England decide how much collateral concerns any particular securitised package? Further, has the National Audit Office been considered for an appropriate method of valuation?
	Secondly, where will these figures appear in government figures? Thirdly, as it is likely that much of the refinancing of the banks is going to come from sovereign wealth funds overseas—which may mean that the effect of this crisis is that huge chunks of the British banking system and the City of London are taken into foreign ownership—have the Government any specific proposals on policy with regard to sovereign wealth funds?

Lord Davies of Oldham: My Lords, I hear what the noble Lord says. I have some sympathy about the necessity of translating figures into those which the ordinary person in the street is rather more familiar with. He will appreciate that when we are talking about the amount of liquidity that will be made available to the system through this scheme of the Bank of England we have got to give a ballpark figure of the total sum involved. The £50 billion indicates that. It is not a fixed final limit; it is an indication of the amount of money that is likely to be made available to the banks against the collateral which they are likely to be able to provide.
	The Government respect the independence of the National Audit Office, which will make judgments on where these figures eventually appear. What is important at this stage is that the practicalities of the operation of the scheme should be effective. The bank will need all its resources in its evaluation in those terms, together with the FSA where it has expertise to contribute. Of course the Bank of England is more aware than any institution in the country of the problems on credit ratings with regard to assets and of what the banks currently offer with a range of assets which are either unquantifiable or maybe rated much lower than the banks had hitherto thought them to be. But the Bank of England will require collateral which it can verify meets the requirements of safeguarding the interests of the taxpayer.

Lord Elystan-Morgan: My Lords, I join with others who expressed their approval of the Government's actions in this matter, and, indeed, of the motivations which underpin those actions. Can the noble Lord assure the House that the banks' take-up of this accommodation is subject to two specific matters; first, that the moneys concerned should be hypothecated to assisting mortagees and would-be mortgagees as otherwise the whole thrust of the Government's initiative becomes purposeless? Secondly, taking up the point raised by the noble Lord, Lord Barnett, about transparency, it is perfectly clear that a situation is developing whereby the intentions in the Companies Acts with regard to the auditing of accounts are being frustrated, either deliberately or for some other reason. Nevertheless, it should be made clear that there has to be the most candid expression of the calculation of losses that have occurred due to the collapse of the sub-prime mortgage market. Indeed, there should be a reasonable appreciation and calculation of the likely contingent losses. Otherwise, there will be a continuing loss of confidence and the whole disclosure system that the Companies Acts guarantee will have been brought into desuetude.

Lord Davies of Oldham: My Lords, it is that latter feature of the lack of confidence that this scheme is designed to alleviate; that is, the banks' inability to lend to each other because of their lack of confidence in the collateral being offered. It is that element which this scheme seeks to remedy by providing additional resources to increase financial liquidity, thereby reducing inter-bank lending rates and in due course helping the general position as regards the total cost of borrowing. The noble Lord will appreciate that the Chancellor was at pains to emphasise that he wants to meet mortgage lenders tomorrow to discuss the very real problem that exists in the mortgage market and for ordinary individuals caught up in these very difficult circumstances. However, this scheme cannot be hypothecated to the mortgage market. It is designed on a much broader canvas than that in terms of the liquidity position of the banking institutions. I accept the concept that the noble Lord puts forward; namely, that an important issue to address is that of individual mortgage holders, as the Chancellor has recognised, but this scheme is about a broader issue than that.

Lord Forsyth of Drumlean: My Lords, can this be the same Minister who, not six months ago, told us that Northern Rock's mortgage book was an absolutely rock-solid asset on which funding could be provided by the taxpayer? Will he answer the key question put by both Front and Back Benches: what haircut is being taken and how was it calculated? What is the Government's assumption about the biggest fall in house prices that can occur? We are entitled to know that, when more than £50 billion of our money is being put on the line on that assumption. Can the Minister say what the haircut will be? Can he also explain how these huge sums of money will be provided off-balance-sheet? The Statement said that the Treasury was providing a guarantee. If there is a guarantee, there is a liability. Why is that not on the Government's books? This is Enron-style accounting which will get us into considerable difficulties.
	The Minister said in an aside about those who had advocated the Lloyds TSB solution in the summer that it would have fallen at the first fence because of state aid. Lloyds TSB asked for £30 billion and for it to be secured on the loan book. If that would fall at the first fence because of state aid, why will not this scheme?

Lord Davies of Oldham: My Lords, this is an operation by the Central Bank concerned with financial liquidity. The noble Lord will recognise that the Bank of England is following patterns which have already been carried out by the European Central Bank and by the Fed and therefore the issue is entirely different from that of one particular institution, as Lloyds TSB is and was last summer when it put forward its proposal which would have raised issues of state aid. I do not in any way, shape or form resile from my position. With regard to the elaborate fiction which the noble Lord manages to portray through the sharpness of his questioning, I notice that it is not often sustained by his Front Bench as being the solution which all ought to have pursued at that time. I have not at any stage seen the Conservative Party prepared to indicate that, had they been in power by last September, the whole issue of Northern Rock would have been solved in a trice by their approach. It just will not do. The proposal was only a proposal; it never really reached first base in terms of a bid; it was vulnerable to the judgments of Europe and it did not go any further. Quite frankly that is a hare that will not run for the noble Lord. I am coming on to haircuts in a moment.
	The issue of specific haircuts, which the noble Lord asked me about a moment ago, is a matter for the Bank of England. It is going to fix those levels. That is its role and its job. What the Statement makes absolutely clear and what the Chancellor is very concerned to emphasise is that the Bank of England has to ensure that the operation of this scheme imposes no costs on the taxpayer. The Bank of England will be required to assure itself that the collateral which it takes is valid and viable. Some areas may not match the criteria needed by the Bank, but for the banking system as a whole, there is no doubt that the additional liquidity, which the Bank has been making available in any case on a shorter term basis as part of its normal operations, is of assistance in these difficult times.

Lord Tebbit: My Lords, we are extremely grateful to the Minister—I think all of us are—for confirming that the Lloyds TSB initiative was cut down by European law before anyone had begun to see whether it would be a runner. That is what he said and he cannot confuse it by talking and talking and talking to try and get away from that. Is it the policy of her Majesty's Government in this rescue—which we all applaud, of course—that those who created this problem out of greed, finality, incompetence or stupidity should not have to pay any penalty for it and can be bailed out at the expense of poor people who are having their tax increased this year?

Lord Davies of Oldham: My Lords, since we are having a few moments on Northern Rock, no one is suggesting that Northern Rock is being bailed out without any costs to shareholders or to the chief executive or chairmen. The suggestion that in their past actions the Government have been involved in a soft bail-out for those who have made mistakes is just not right in the illustration of Northern Rock. With regard to Lloyds TSB, of course it did not go before Brussels. It was never a proposal; it was not much more than an inquiry and a position put forward which would have failed at the first fence. As far as the Government are concerned, that is as far as it went. The noble Lord has to give the Government credit. If there had been an easy solution from a bank last August—a proposal that would have dealt with Northern Rock—is he seriously suggesting that the Government would have gone through six months of harassment over the issue? That just will not do.
	On the more general issue, I emphasise that the banks take the risks in relation to this scheme. Risks stay with the banks. Where banks are not able to sustain their levels of lending, they are in trouble. We all recognise that. However, we have an obligation to sustain the wider financial institutions in a way that guarantees to each and every one of us and to our fellow citizens the necessary resources. Within that, the Government are acting to protect taxpayers and at the same time to increase the necessarily liquidity, which is not there at present, which is why the banks are in this mess.

Lord Fraser of Carmyllie: My Lords, notwithstanding the gratuitous slash at lawyers by the noble Lord, Lord Barnett, it is clear to me that the lawyers are having some difficulty understanding this proposal. My noble friend Lady Noakes is absolutely correct. Both last night and this morning, long before any Statement was made to either House of Parliament, this had been widely leaked across the media. It is outrageous that the spin put on it was that those people who apply for mortgages now would find themselves in a healthier position than today. If I am a bit slow or I have not paid attention to a bit, will the Minister point me to it? I found absolutely nothing in the Statement which says that those people who are applying for mortgages today will find themselves in a better position than they were last Friday.

Lord Davies of Oldham: My Lords, if the noble and learned Lord suggests that there is Government spin on the issue, it is not present in the Statement, which I repeated to the House this afternoon, and it has not been in any of our statements. The Statement concerns financial stability. In so far as there are leaks, I regret that, but broadly the nation has been aware that this is a Bank of England scheme designed to improve liquidity for banks where credit is drying up and becoming more expensive. We all know the nature of that problem. Of course, there is an issue with mortgage holders and we all recognise the difficulties that they are facing. That is why the Chancellor is at pains to emphasise this. Separately from this scheme, he is meeting mortgage lenders tomorrow to discuss with them ways of ameliorating the problems that mortgage holders may find in the immediate situation. However, this Statement concerns the wider financial system and that is how it has been presented.

Criminal Justice and Immigration Bill

Further consideration of amendments on Report resumed.
	Clause 27 [Application of section 35(1) of the Criminal Justice Act 1991 to prisoners liable to removal from the UK]:
	[Amendment No. 66 not moved.]
	Clause 29 [Release of prisoners after recall]:

Lord Bach: moved Amendments Nos. 66A and 66B:
	Clause 29, page 19, line 40, at end insert—
	"(aa) in a case where paragraph (a) does not apply, he was recalled under section 254 before the normal entitlement date (having been released before that date under section 246 or 248); or"
	Clause 29, page 19, line 41, at beginning insert "in a case where neither of the preceding paragraphs applies,"
	On Question, amendments agreed to.
	[Amendment No. 66BA not moved.]

Lord Bach: moved Amendment No. 66C:
	Clause 29, page 20, line 18, leave out "(2)(b)" and insert "(2)(aa) or (b)"
	On Question, amendment agreed to.
	[Amendment No. 66CA not moved.]

Lord Bach: moved Amendments Nos. 66D and 66E:
	Clause 29, page 20, line 44, leave out from beginning to end of line 5 on page 21 and insert—
	"(12) In subsection (2)(aa) the "normal entitlement date" means the date on which the prisoner would (but for his earlier release) have been entitled to be released under section 244.
	(12A) For the purposes of subsection (2)(b) terms of imprisonment which are consecutive and terms which are wholly or partly concurrent are to be treated as a single term if—
	(a) the sentences were passed on the same occasion, or(b) where they were passed on different occasions, the prisoner has not been released under this Chapter at any time during the period beginning with the first and ending with the last of those occasions."
	Clause 29, page 21, line 7, at end insert—
	"(14) In this section, "term of imprisonment" includes a determinate sentence of detention under section 91 of the Sentencing Act or under section 228 of this Act."
	On Question, amendments agreed to.
	[Amendment No. 66EA not moved.]

Lord Bach: moved Amendment No. 66F:
	Clause 29, page 21, line 42, leave out "255A(2)(b)" and insert "255A(2)(aa) or (b)"
	On Question, amendment agreed to.
	[Amendments Nos. 66FA and 66FB not moved.]
	Clause 31 [Recall of life prisoners: abolition of requirement for recommendation by Parole Board]:
	[Amendment No. 66FC not moved.]
	Clause 32 [Recall of prisoners released under Criminal Justice Act 1991]:

Lord Bach: moved Amendments Nos. 66G and 66H:
	Clause 32, page 24, line 18, at end insert "with the modifications specified in subsection (3A)"
	Clause 32, page 24, line 18, at end insert—
	"(3A) Section 255A applies as if—
	(a) the reference in subsection (2)(aa) to section 246 or 248 of the 2003 Act were a reference to section 34A or 36 of this Act,(b) the reference in subsection (12) to section 244 of the 2003 Act were a reference to section 33(1), (1A) or (2) of this Act,(c) subsection (12A) were omitted (provision to the same effect being made by section 51(2) of this Act, as it applies by virtue of subsection (8) below), and(d) subsection (14) provided that "term of imprisonment" included any sentence of detention mentioned in section 43(1) of this Act."
	On Question, amendments agreed to.
	Clause 33 [Removal under Criminal Justice Act 1991 (offences before 4th April 2005 etc.)]:
	[Amendment No. 67 not moved.]
	Clause 34 [Removal under Criminal Justice Act 2003]:
	[Amendment No. 68 not moved.]
	Clause 35 [Referral conditions]:

Lord Hunt of Kings Heath: moved Amendment No. 69:
	Clause 35, page 27, leave out lines 31 to 38 and insert—
	"(c) subsection (2A), (2B) or (2C) below is satisfied in relation to the offender.
	(2A) This subsection is satisfied in relation to the offender if the offender has never been convicted by or before a court in the United Kingdom ("a UK court") of any offence other than the offence and any connected offence.
	(2B) This subsection is satisfied in relation to the offender if the offender has been dealt with by a UK court for any offence other than the offence and any connected offence on only one previous occasion, but was not referred to a youth offender panel under section 16 above on that occasion.
	(2C) This subsection is satisfied in relation to the offender if—
	(a) the offender has been dealt with by a UK court for any offence other than the offence and any connected offence on one or more previous occasions, but has been referred to a youth offender panel under section 16 above on only one previous occasion;(b) an appropriate officer recommends to the court as suitable for the offender a referral to a youth offender panel under that section in respect of the offence; and(c) the court considers that there are exceptional circumstances which justify ordering the offender to be so referred.
	(2D) In subsection (2C)(b) above "appropriate officer" means—
	(a) a member of a youth offending team;(b) an officer of a local probation board; or(c) an officer of a provider of probation services.""

Lord Hunt of Kings Heath: My Lords, we are making remarkable progress—which, if I may say so to the noble Lord, Lord Henley, is what I mean by being "on a roll".
	Amendment No. 69 has been tabled in response to the debate on the amendment tabled in Committee by the noble Lord, Lord Kingsland, which sought to allow for a young offender to receive a second referral order where the youth offending team or other appropriate body recommended one . We had a detailed debate on the merits of allowing a second referral order in which I made clear the Government's concern that we must retain the integrity and effectiveness of the referral order. The order is targeted primarily at young offenders appearing in court for the first time who plead guilty to the offence, and it has the lowest reconviction rate at 44 per cent. We are anxious not to undermine its success. We are already making provision in the Bill to allow a referral to be made on a second conviction where a referral order has not been made previously and we are also easing some of the restrictions placed on its use. We have also responded to the debate in another place by adding flexibility to the referral order so that an order may be extended by three months or revoked early in appropriate circumstances where the youth offender panel recommends this to the court.
	I have listened carefully to the arguments put forward in Committee and this proposed amendment is the result. It addresses both the concern put forward by the noble Lord, Lord Kingsland, and the Government's concern that a second referral order should not become the norm. I have accepted that there will be circumstances where it will be appropriate for a young offender to receive a second referral order; for instance, where a significant time has elapsed since they first underwent the referral process. However, requiring that this should happen only in exceptional circumstances and where the youth offending team recommends it will ensure that a proper gate-keeping process is undergone. We have consulted with the Youth Justice Board, which agrees with what the Government are proposing. I hope that the noble Lord, Lord Kingsland, will feel that I have gone at least a considerable way to meeting his point. I commend the amendment to the House.

Lord Kingsland: My Lords, the Minister asked me whether I would be pleased at the concession that the Government have made on this matter. Of course I am, and I acknowledge that freely. While not every concern that we expressed has been recognised, the substance has—and for that, I am much in his and the Government's debt.

On Question, amendment agreed to.
	Clause 42 [Power of Court of Appeal to disregard developments in the law: England and Wales]:

Lord Davidson of Glen Clova: moved Amendment No. 70:
	Clause 42, page 33, line 25, leave out from "after" to "In" in line 27 and insert "subsection (1) insert—
	"(1A) "

Lord Davidson of Glen Clova: My Lords, this is a group of minor technical and drafting amendments to Part 3. In the main they are consequential amendments to what are now Clauses 42 and 43 of, and Schedule 8 to, the Bill as a result of the removal in Committee of the then Clauses 42 and 43, which contained a change to the test applied by the Court of Appeal in relation to the safety of a conviction. I beg to move.

On Question, amendment agreed to.

Lord Lloyd of Berwick: moved Amendment No. 70A:
	Clause 42, page 33, leave out lines 27 to 30 and insert—
	"(1C) In determining appeals referred to it by the Criminal Cases Review Commission on the ground that there has been a development in the law since the date of conviction the Court of Appeal may dismiss the appeal if it would have refused leave to appeal out of time."

Lord Lloyd of Berwick: Clause 42 is intended to deal with a very narrow range of cases where a conviction is referred to the Court of Appeal by the Criminal Cases Review Commission on the ground that there has been a change of law since the conviction.
	The existing practice of the Court of Appeal is clear in cases in general. When an appeal is based on a change in law, the appellant will almost always need leave to appeal out of time. That is the nature of such cases; they often do not arise until long after the conviction. The court will almost always refuse leave to appeal in those cases unless the appeal is itself extremely meritorious, so the conviction is upheld. That is the solution in all ordinary cases based on a change of law and it is a solution that works very well. But it does not work when the appeal is referred to the Court of Appeal by the CCRC. In such cases the appellant does not need leave to appeal, so the filter that is currently operated by the Court of Appeal is ineffective. Clause 42 is intended to deal with that very narrow range of cases.
	The trouble with Clause 42, which emerged clearly in Committee, is that it is almost impossibly wide as it stands. It would cause great difficulty to the practising Bar—a point made well by the noble Lord, Lord Thomas of Gresford—and it would cause the academic lawyers to have a collective heart attack. The Government now accept this, and as a result discussions have taken place between what are called interested parties, including Professor Zellick, the current chairman of the Criminal Cases Review Commission.
	It was the judiciary that first suggested that the problem, such as it is—and I emphasise that it is a very small problem—should be subject to legislation. For that reason the noble and learned Lord, Lord Davidson, whom I am glad to see in his place, suggested that I have a word with the president of the Queen's Bench Division, which indeed I did. He and I agreed on a form of words which in my view—and, much more importantly, in his view—meets the particular difficulty that gave rise to this clause and, hence, to this amendment. The amendment would solve the problem in a neat and straightforward way and I had hoped that it would be accepted as it stands.
	The Government now say, believe it or not, that my amendment is too wide. They have gone from one extreme to the other. The original proposal was impossibly wide and now they say that my very narrow amendment is too wide. They say that it might cause difficulty—note "might"—when a conviction is referred to the Court of Appeal by the CCRC on two or more grounds, only one of which is based on a change of law. They accept that that difficulty, such as it is, is theoretical; but despite a flurry of e-mails between the noble and learned Lord and myself in the past few days, I cannot for the life of me see what the difficulty is. I very much look forward to hearing from him. In the mean time, I beg to move.

Lord Kingsland: My Lords, the noble and learned Lord, Lord Lloyd of Berwick, should not be surprised by the Government's change of tack on this issue. He should have learnt by now that even if the Government accept the wisdom and substance of an amendment tabled by a member of the Opposition or the Cross Benches, they find it difficult to accept the exact wording. It is in that context, and no other, that one should see what has emerged from the government Benches.
	As far as the noble and learned Lord's amendment is concerned, who am I to question something crafted by such a distinguished couple as the noble and learned Lord on one hand and the president of the Queen's Bench on the other? I wait with interest to hear the Government's reasons for wanting something a little more tautly drawn.

Lord Campbell of Alloway: My Lords, I intervene briefly because I cannot look at this from the point of view of an academic lawyer or the problems that have arisen in the past. I look at it as it stands, or indeed from the point of view of the Appellate Committee of your Lordships' House—I have only had the privilege of appearing before it, that is all. My appreciation of what goes on there is of absolutely no interest to anybody. But I am a little worried. If the law changes, are you really going to be put out in the interests of doing justice, broadly? I cannot put it another way. It seems to me to go against the grain—although if it goes with the grain of the academics, I could not care less. I am interested in justice, not the interests of the academics. There is a distinction to be drawn between a development in the law and the development of the means of getting evidence to enforce it. That is an important distinction. It should never be foreclosed upon by the Appellate Committee of the House. It has not done so and I do not suppose that it will do so, but would it and where does this lead us? I am not asking these questions to be difficult or tiresome; I simply do not understand that this will, in the end, deliver what I understand as plain justice.

Baroness Butler-Sloss: My Lords, I have discussed this with the noble and learned Lord, Lord Lloyd of Berwick, and the president of the Queen's Bench Division. This is a very sensible amendment and I support it.

The Earl of Onslow: My Lords, it beggars description that when the noble and learned Lord, Lord Lloyd of Berwick—who, in the immortal words of Bertie Wooster on Jeeves, was certainly fed on fish from an early age—and the president of the Queen's Bench come up with a wording to satisfy a small and technical point, the Government then have to go away and try to do it better. If they have been given a Rolls-Royce, why can they not sit in it and drive it, as opposed to fiddling with it, trying to make it a four-wheel drive vehicle?

Lord Thomas of Gresford: My Lords, if by contemporary standards of justice there has been a miscarriage of justice in the past, it is surely for the Court of Appeal to right that injustice. The purpose of the amendment of the noble and learned Lord, Lord Lloyd of Berwick, is to ensure that that is done. We on these Benches support it entirely.

Lord Davidson of Glen Clova: My Lords, with that introduction, perhaps I should have had some more sardines for my breakfast this morning. Clause 42 amends Section 2 of the Criminal Appeal Act 1968 to give the Court of Appeal a discretion to disregard developments in the law since the date of conviction. The noble and learned Lord, Lord Lloyd of Berwick, is concerned that the clause is too wide in its effect. We understand his concern to be that it would allow the Court of Appeal to disregard the law as it is now in any case where it was considering whether a conviction was unsafe, in whatever manner the case reached the court, and whether a development in the law was one of the grounds of appeal. The matter has been discussed with the noble and learned Lord, and we have been exploring the possibility of reducing the ambit of the clause to make clear that it applies only to cases referred to the Court of Appeal by the Criminal Cases Review Commission.
	We are broadly sympathetic to the objectives of the noble and learned Lord's Amendments Nos. 70A, 71A and 72A. In addition to limiting the scope of the clause to referrals by the Criminal Cases Review Commission, they also limit the court's power to dismiss the appeal to cases in which it would have refused leave out of time. We are not sure whether the latter limitation is essential, but it does have the merit of signalling—at least to the alert reader—that cases referred by the commission are in fact to be dealt with in the same way as other cases.
	However, with the greatest respect to the noble and learned Lord, we have some concerns about the drafting of the provision. The difficulty is that it would apply whenever a case is referred by the CCRC on the grounds that there has been a change in the law, even if it is also referred by the CCRC on other grounds. In such a case, it would seem to give the court a new power to dismiss any of the grounds of appeal, even grounds that have nothing to do with the change of law and even if the appeal might succeed on the merits. No doubt we can rely on the Court of Appeal not to use the power in an unreasonable manner, but it seems preferable that the power to dismiss should explicitly be confined to appeals which turn on a change in the law rather than the wider category of appeals which are referred on a change in the law.
	I entirely agree that it might seem churlish to look at the Rolls-Royce drafting and turn it aside, but there is simply a small technical point on which we would take issue with the proposal as it stands. We would perhaps have thought that a repenting sinner would receive a greater welcome than the noble Lord, Lord Kingsland, has extended. I say to the noble Lord, Lord Campbell, that the approach adopted here on changes in the law is precisely to deal with the concern that one would be moving into a difficult area where one might not arrive at the just outcome. It was simply for that reason that we have been persuaded by the arguments deployed.
	A second technical difficulty is that when the court is considering an out-of-time appeal it has two preliminary decisions to make: first, whether to extend time; and, secondly, whether to grant leave to appeal. We do not think that it is sufficient for the clause to refer to,
	"leave to appeal out of time",
	which, with respect, may conflate these two issues.
	For those reasons, we do not think that the noble and learned Lord's amendments quite do the trick. We consider that the clause should operate where, first, the case has been referred by the Criminal Cases Review Commission; and, secondly, where the fact that there has been a development in the law since the date of conviction is the only basis for allowing the appeal. We would be content also to limit the power to dismiss the appeal to cases in which the court would have refused an extension of time. A clause amended in this way would achieve our objective, which is to secure that the Court of Appeal should no longer find itself compelled to quash the conviction in the relevant cases. If that outcome would be satisfactory to the noble and learned Lord, Lord Lloyd, and to those other noble Lords who have put their name to the amendments in this group, the Government will aim to table a suitable amendment on Third Reading.

Lord Lloyd of Berwick: My Lords, first, a possible answer for the noble Lord, Lord Campbell of Alloway, is that the amendment would certainly in no way inhibit the judges of the Court of Appeal doing justice in a particular case—it would, in fact, enable them to do it more expeditiously than would a possible amendment which is being floated by the Government.
	On the Minister's reply, I am of course glad that the Government now accept that the existing clause is far too wide. He suggests that my amendment is still too wide, because it would enable the Court of Appeal to dismiss an appeal that has merit and which it would not otherwise dismiss but allow because it is conjoined with another ground of appeal that happens to be based on change of law. I do not understand that. It is not just a question that the Court of Appeal would never in its life do such a silly thing but it is not something that flows from the language of my amendment as I see it.
	Having said that, I will try to attempt the thing that the noble Lord, Lord Kingsland, says can never be done: to persuade the Government that someone else's wording is better than theirs. In that hope, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hunt of Kings Heath: moved Amendment No. 71:
	Clause 42, page 33, line 32, leave out from "after" to "In" in line 33 and insert "subsection (1) insert—
	"(1A) "
	On Question, amendment agreed to.
	[Amendment No. 71A not moved.]

Lord Hunt of Kings Heath: moved Amendment No. 72:
	Clause 42, page 33, line 37, leave out from "after" to "In" in line 39 and insert "subsection (1) insert—
	"(1A) "
	On Question, amendment agreed to.
	[Amendments Nos. 72A and 73 not moved.]
	Clause 43 [Power of Court of Appeal to disregard developments in the law: Northern Ireland]:

Lord Hunt of Kings Heath: moved Amendments Nos. 74 to 76:
	Clause 43, page 34, line 6, leave out from "after" to "In" in line 8 and insert "subsection (1) insert—
	"(1A) "
	Clause 43, page 34, line 13, leave out from beginning to "In" in line 14 and insert "subsection (2) insert—
	"(2A) "
	Clause 43, page 34, line 18, leave out from "after" to "In" in line 20 and insert "subsection (3) insert—
	"(3A) "
	On Question, amendments agreed to.
	[Amendment No. 77 not moved.]
	Schedule 8 [Appeals in criminal cases]:

Lord Hunt of Kings Heath: moved Amendment No. 77A:
	Schedule 8, page 192, line 9, leave out from "substitute" to "and" in line 10 and insert ""(taken as a whole) for all the related offences of which he remains convicted","
	On Question, amendment agreed to.

Lord Hunt of Kings Heath: moved Amendments Nos. 78 and 79:
	Schedule 8, page 192, line 38, leave out from beginning to "Effect" in line 39 and insert —
	"8 Before section 31 (but after the cross-heading preceding it) insert—
	"30A "
	Schedule 8, page 195, line 41, leave out from beginning to "Effect" in line 42 and insert—
	"20 (1) For the cross-heading preceding section 30 substitute—
	"Supplementary".
	(2) Before section 30 (but after the cross-heading preceding it) insert—
	"29A "
	On Question, amendments agreed to.
	Clause 48 [Alternatives to prosecution for offenders under 18]:

Lord Hunt of Kings Heath: moved Amendment No. 79A:
	Clause 48, page 35, line 34, leave out "offenders aged 16 and 17" and insert "children and young persons"

Lord Hunt of Kings Heath: My Lords, we come to youth conditional cautions. During Committee stage I indicated that we were carefully considering the issue of the current restriction on the use of youth conditional cautions to 16 and 17 year-olds. We have now had the opportunity to reflect on the arguments made by noble Lords. We have been persuaded by them and we have therefore tabled government amendments designed to remove the age restriction, so that this out-of-court disposal will be available to all young people. I hope that the House will welcome this move. I also hope that the House will acknowledge that the Government's approach to a staged implementation is the most appropriate course to take. Initially, we intend to introduce youth conditional cautions for 16 to 17 year-olds. There is no question that applying youth conditional cautions for 10 to 15 year-olds will give rise to a different set of challenges, so we wish to learn from the application of this new out of court disposal to the higher age range and consult widely before extending the Bill's provisions to the 10 to 15 age group.
	I would just add that, in accordance with the recommendation of the Delegated Powers and Regulatory Reform Committee, we are providing in the amendments grouped with this amendment that the first time a code of practice for youth conditional cautions is made. It would be subject to the affirmative, rather than the negative, resolution procedure. I hope that the House will support this group of amendments. I beg to move.

Baroness Falkner of Margravine: My Lords, there has been some confusion about the case despite comments from the Benches on our left. I will, however, rise to the occasion. I was slightly distracted by the incredible pace of debate this afternoon.
	We have received the letter from the Minister, the noble Lord, Lord Hunt of Kings Heath, and are grateful that the Government have taken on board the philosophy behind what we were trying to do, if not the absolute wording of our amendments. On that basis, we are grateful to the Government for having come this far because, eventually, the objective that we all wanted to achieve has been covered—more or less.

On Question, amendment agreed to.

Lord Hunt of Kings Heath: moved Amendment No. 79B:
	Clause 48, page 35, line 36, at end insert—
	"(2) The Secretary of State may by order amend the Crime and Disorder Act 1998 (c. 37), as amended by Schedule 9, so as to vary the provision made by it for the giving of youth conditional cautions to children and young persons under the age of 16 (including doing so by adding or omitting any provision)."
	On Question, amendment agreed to.
	Schedule 9 [Alternatives to prosecution for persons under 18]:

Lord Hunt of Kings Heath: moved Amendments Nos. 79C to 79E:
	Schedule 9, page 199, line 26, at beginning insert " "Young offenders:"
	Schedule 9, page 199, line 27, leave out "for offenders aged 16 or 17"
	Schedule 9, page 199, line 29, leave out "young person aged 16 or 17" and insert "child or young person"
	On Question, amendments agreed to.
	[Amendment No. 79F not moved.]

Lord Hunt of Kings Heath: moved Amendments Nos. 79G to 79K:
	Schedule 9, page 200, line 33, after "16" insert "or under"
	Schedule 9, page 203, line 32, leave out ", 66G(5)"
	Schedule 9, page 203, line 36, after "below" insert ", or
	(b) an order under section 66G(5) other than the first such order"
	Schedule 9, page 203, line 43, after "money" insert ", and
	(b) the first order under section 66G(5)"
	On Question, amendments agreed to.
	Schedule 10 [Protection for spent cautions under the Rehabilitation of Offenders Act 1974]:

Lord Hunt of Kings Heath: moved Amendment No. 79L:
	Schedule 10, page 204, line 13, leave out "persons aged 16 or 17" and insert "children and young persons"
	On Question, amendment agreed to.

Baroness Falkner of Margravine: moved Amendment No. 80:
	After Clause 53, insert the following new Clause—
	"Treatment of 17 year-olds as children for remand purposes
	(1) Section 23 of the Children and Young Persons Act 1969 (c. 54) (remands and committals to local authority accommodation) is amended as follows.
	(2) In subsection (12), in the definition of "young person", for "seventeen" substitute "eighteen"."

Baroness Falkner of Margravine: My Lords, this amendment has come to us by way of the Standing Committee for Youth Justice. Its purpose is to treat under-18 year-olds as children and young people. During the final days in Committee, we debated the issue in several different guises.
	The argument is that the Bill fails to address the continued treatment of 17 year-olds as adults for the purposes of bail and remand. It means that at court, 17 year-olds cannot be remanded to local authority accommodation and are automatically remanded to custody if bail is denied.
	In their response to the consultation paper, Youth Justice—The Next Steps, published in March 2004, the Government first stated their intention to address the situation. The Bail Act 1976 applies in its entirety to children and young people and that throws up the anomaly that those who are 17 years old are still dealt with under adult provisions for the purposes of bail and remand. Therefore, when bail is refused they are automatically rendered in custody and do not have the protective buffer of the option of remand to local authority accommodation and are not subsequently looked after.
	That means that where the court feels that bail cannot be granted due to the risk of future non-attendance at court appearances, a 17 year-old must be remanded in custody, whereas a 16 year-old would have other options. The Youth Justice Board has supplied statistics indicating that during 2005 and 2006 there were 6,561 episodes of 17 year-olds being remanded in custody. That is a considerable number.
	There are also human rights considerations. In response to the UK Government's report on the implementation of the United Nations Convention on the Rights of the Child in 2002, the UN committee on that convention recommended that the state party—our Government—review the status of young people 17 years of age for the purposes of remand, with a view to giving special protection to all children under the age of 18. The Standing Committee for Youth Justice points out that there are no obvious grounds for distinguishing between 16 and 17 year-olds in respect of bail and remand decisions. Therefore, the current system may well be seen to be in breach of Article 14, which requires equal treatment on the basis of age.
	When this issue was raised in Committee, the Minister said that the issue was not straightforward, and I can see that. He said that there was a catalogue of linking factors that our amendments at that stage did not cover. He mentioned in particular the status of 17 year-olds under police bail, which is covered by the Police and Criminal Evidence Act. He felt that we would need to re-examine that as well. I accept that we do not cover all the interlinked issues. This is a very limited amendment—that is why we are keeping it as narrow as we are. Were there a Bill before us that dealt with policing issues, we would certainly raise it in that context. When such a Bill comes forward, I guarantee that we will return to these issues in that forum. The point is that where we are on this Bill is not where we might wish to be. We are trying to get the Government to accept that we need a response. It has now been a considerable length of time. I understand that it is a complex issue and that they have been looking at it, but we need to move a little further. I beg to move.

Lord Kingsland: My Lords, we broadly support the propositions advanced by the noble Baroness, Lady Falkner. I note that the Standing Committee for Youth Justice produced a compelling paper, arguing in her favour. The philosophies of that paper and the proposed amendment are identical. The Government are denying themselves an important degree of flexibility in dealing with this class of offenders, which is open to them in dealing with adult offenders. That seems puzzling when you consider that more informal ways of dealing with offences for the under-18s generally have a better impact with respect to recidivism than court-imposed penalties. That the Government have not conceded that this approach is the better one just adds to one's amazement.

The Earl of Onslow: My Lords, it seems to go without saying that the longer one keeps the young away from the experienced ungodly, the better. To raise this age from 17 to 18 seems to go down that line. A distinguished judge said to me the other day, "I know prison doesn't work—but Michael, what am I to do?" That seems to sum up the problems that we have with prison. What we know is that the less you mix the older with the younger, the better. For that reason, I support the noble Baroness in her argument.

Baroness Howe of Idlicote: My Lords, I, too, support the amendment, as I did on a previous occasion. I am certain that the noble Lord, Lord Judd, if he were here, would have been on his feet much earlier. I do so for the reasons stated—the maximum flexibility in dealing with the young, acknowledging the different stages of growing up and giving them the maximum chance of not going into a fully-fledged prison environment. I support the amendment and hope that the Government will think again.

Lord Bach: My Lords, let me make it clear that the Government cannot support the amendment as it stands, but we welcome the opportunity to reiterate the assurances given in Committee that we are committed to resolving this issue in the longer term. We do not dispute the logic of the noble Baroness in moving her amendment. It is an anomaly that 17 year-olds are treated as adults for remand placement purposes, but as children in every other part of the youth justice system.
	During the debate in Committee, we voiced our sympathy with the thrust of the amendment, and I do so again today. I also set out the steps that had been taken to look at this issue and the complexities that had been uncovered that had prevented us from so far reaching an acceptable solution. Unfortunately, there are complexities. We know that the issue needs to be resolved. Our public response to the consultation Youth Justice: The Next Steps has made that commitment public. As the noble Baroness, Lady Falkner, was right to remind the House, the United Nations Convention on the Rights of the Child has identified this issue as requiring resolution. We have accepted our obligation to consider how we can do that. We will not lose sight of this issue and we will pursue a resolution of the problem.
	We have already undertaken work to explore how we can correct this anomaly. The aim of this work echoed entirely the sentiment behind the amendment. It looked at replication of the remand placement structure for 12 to 16 year-olds for 17 year-olds. However, this has proved to be more problematic than merely changing the age in the current legislation as the amendment does. I say, with regret, that we have yet to find a workable solution.
	The test for bail is essential the same for both adults and young people, and it is not the subject of the amendment. The central issue is the placement of those aged 17. If the offender is remanded in custody, for 17 year-olds in practice it will be in a young offender institution and those aged 16 and under will normally be remanded to the care of the local authority. The amendment seeks to bring 17 year-olds into line with the provisions applying for young people aged 16 and under. In practice, that would mean that if the court orders a secure remand, a 17 year-old would be placed either in a secure training centre or a local authority secure children's home. However, if remanded to the care of the local authority, the decision on the placement then lies with it, and the placement could be secure or non-secure, and it could include them living at home.
	In an ideal world, we would want 17 year-olds to have similar options. However—this is critical—we do not believe that they should be placed routinely in children's homes, because Section 23 of the Children and Young Persons Act 1969 also provides for the placement of the very youngest and most vulnerable young people into local authority accommodation. We rely on the argument made in part by the noble Earl, Lord Onslow, just now, that we do not want to mix up the very young with 17 year-olds in children's homes. We do not think it appropriate to introduce 17 year-olds to local authority accommodation and to allow them to mix with a vulnerable group of younger children, particularly those who are there for welfare reasons alone.

The Earl of Onslow: My Lords, that is exactly the argument that I did not use. The argument that I used was that to put 17 year-olds with older criminals is wrong, not the other way around. It is essential in my view that they should not be mixed with older criminals and the Government seem to have accepted that but, like St Augustine, they say, "Make me chaste; but not just yet".

Lord Bach: My Lords, of course I know what argument the noble Earl was putting, and we agree with that argument. Ideally, 17 and 18 year-olds should not mix. The argument against putting 17 year-olds in children's homes is that they would then mix with vulnerable children aged perhaps from 11 upwards, or maybe even younger than that. That is why I prayed in aid his argument. We do not deny its validity—in fact what I am saying now accepts its validity—but other options have to be considered. It is not a straightforward issue. We fear that the amendment is a little too simple and does not take into account the other interlinking factors that are equally important and which must be addressed alongside this issue. We spoke to the Standing Committee for Youth Justice on this subject following the Committee stage in this House. It is aware of the complexities involved and takes the point I have just made. We have already discussed with the standing committee how it might assist us in taking this matter forward.
	I shall set out again—as briefly as I can, as I do not wish to take up too much of the time of the House, although this is an important topic—what other factors will have to be considered if we are to change the remand status of 17 year-olds. First, consideration would need to be given to the status of 17 year-olds under police bail, which is covered by the Police and Criminal Evidence Act. Any change in this provision may increase demand for juvenile accommodation in police custody suites because, as the House will know, young people have to be separated from adults in police detention and females have to be under the care of a woman officer. This has special relevance in this context because of the read-across to the provision of appropriate adults under Code C and the status of 17 year-olds under this Act. The House will want to know that the Home Office is currently reviewing the codes under PACE and we will need to ensure that this is addressed. We also need to look at the care status of young people under such a provision.
	Finally, and most important, we need to consider the impact of any changes to 17 year-old remand status on the Bail Act itself. If we are to consider making changes to that important legislation, we need to ensure that they are undertaken in a coherent and consistent manner. We need to consider what the consequences of such changes will be. One issue has already been identified: under this amendment, 17 year-olds who are likely to interfere with witnesses and have been refused bail might end up with a non-secure remand. Noble Lords will agree that that cannot be right and that we would be failing in our duty to protect victims and the public if we did not address that issue.
	We are very aware of our obligations under the UN Convention on the Rights of the Child and the commitment that we made following our response to the document Youth Justice—The Next Steps. I say again that we will review how we can ensure that 17 year-olds are treated appropriately for the purposes of remand, but such a review has to be done as a whole so that it takes into account all the relevant issues. It is thus with regret that I cannot agree to this amendment on behalf of the Government, but I assure the noble Baroness and the House that we will continue working in order to change what I have already conceded is an anomaly that needs to be changed.

Baroness Falkner of Margravine: My Lords, I thank noble Lords who have supported the broad thrust of the thinking behind this amendment. It is clear that there is growing concern over the increase in custodial rates and the poor outcomes associated with young people being held in custody. During the debate on the previous amendment tabled by the noble Lords, Lord Henley and Lord Kingsland, on which we divided, the Minister mentioned the Carter review and reminded us that there was a genuine attempt by the Government to reduce numbers in custody.
	Philosophically, we can go down this road where we all acknowledge that custody does not work for everyone. We particularly recognise that in the case of young people. Throughout the weeks that the Bill has been in this House, we have recognised that custody is often deleterious and that people who are locked up as young people or children are more likely to end up in custody as adults. During the debate on the previous amendment, the Minister reiterated that there was a genuine attempt to bring down numbers, yet it is now four years since a consultation paper, the responses to it and the Government's promise that we would look at this. For a young person who was 17 then and who was incarcerated, it has been a very long four years—25 per cent of their life—of waiting. That part of the person's life has gone, damaged as it is.
	There are numerous cases—6,561 is not an insignificant amount—of people who are still treated in that manner. We have our international commitments, for which we have fine words, but there is little point in signing up to international conventions if we are not really going to take them seriously and incorporate them into law. The Minister's emollient words are there for the record and I have absolutely no doubt that he is completely sincere, but this is, I am afraid, a counsel of despair. We are still where we are and, I say with all due respect to those fine words, we do not have any commitment to look at this in the round within a certain timeframe and to bring in measures. That is why I was keen to table even a limited amendment that addressed this. I thought that it was better to move forward in a very limited way than to go beyond this into policing and other areas. However, we are where we are, and given the extremely long list of business ahead of us this evening, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Thomas of Gresford: moved Amendment No. 81:
	After Clause 53, insert the following new Clause—
	"Accommodation in which persons under 18 may be detained
	(1) No person under 18 shall be detained in a young offender institution.
	(2) The Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) is amended in accordance with subsection (3) and (4).
	(3) In section 92(1) (detention under sections 90 and 91: place of detention etc.) at the end insert ", provided that such a place is not a secure training centre of young offender institution."
	(4) In section 107(1) (meaning of "youth detention accommodation")—
	(a) omit paragraphs (a) and (b); (b) in paragraph (c) after "by order specify" insert "but not including a secure training centre or young offenders institution".
	(5) In section 23 of the Children and Young Persons Act 1969 (c. 54) (remands and committals to local authority accommodation), omit subsections (7A) and (7B).
	(6) In the Crime and Disorder Act 1998 (c. 37), omit section 98."

Lord Thomas of Gresford: My Lords, this again is an amendment that has been proposed by the Standing Committee for Youth Justice. Its aim is to prevent children detained on sentence or remand from being detained in either a secure training centre or a young offender institution and to ensure that the only accommodation used for this purpose is a local authority secure children's home.
	Your Lordships have already expressed in our discussions on the previous amendment and other amendments a concern about the care and treatment received by children in custodial settings. We on these Benches are concerned to ensure, as my noble friend Lady Falkner said a moment ago, that the Government's commitments to human rights standards in relation to children are reflected in criminal justice legislation. The amendment would provide for the essential reform of children's custodial settings, which we need if we are to stop failing children and the wider society in this critical area.
	Children who are sent to custody are already, almost by definition, among the most vulnerable in the country. The Social Exclusion Unit found in 2002 that nearly half the children in custody had literacy and numeracy levels lower than those of an average 11 year-old. More than half of them had a history of being in the care of social services and 40 per cent of girls and 25 per cent of boys reported suffering violence at home. One in three girls and one in 20 boys reported sexual abuse. Again, there were serious mental health problems among both boys and girls, as well as a dependency on the drug culture.
	As my noble friend Lord Carlile reported in his 2006 independent inquiry, published by the Howard League, into the use of physical restraint, solitary confinement and the forcible use of strip-searching in prisons, secure training centres and local authority secure children's homes, some treatment of children in custody would in any other circumstances trigger a child protection investigation and could even result in criminal charges. For vulnerable children who suffer from the problems that I have outlined, it is extremely important that detention settings should be child-centred and specialised to their needs.
	Young offender institutions and STCs are not tailored to meet the needs of vulnerable children. Efforts must be focused on alternatives to custody but, where custody is necessary, there must be investment in specialist staff and settings that can meet the children's needs and facilitate their rehabilitation in a safe environment. It must not be forgotten that the Prison Service is essentially an adult institution. It is designed for adults, who are 96 per cent of its clientele. That is reflected in arrangements for management, staffing, training and regime content. We submit that holding children in Prison Service accommodation is in direct contravention of Article 40.3 of the CRC, which requires detention facilities to be "specifically applicable to children".
	Key bodies, such as the Joint Committee on Human Rights, the international Centre for Crime and Justice Studies at King's College and the Local Government Association, have already recommended that we move away from prison settings for children. It is a long-standing problem, but recent reports from the Chief Inspector of Prisons, Anne Owers, show how important it is. In 2006, she reported of her concern about the use of force on children in prison. She said:
	"In many establishments, a significant proportion of child protection referrals concern allegations of abuse or rough handling during the use of force; some have resulted in injuries, such as broken bones".
	In her 2005-06 report, she said of these issues:
	"Underlying these ... is the question of whether prison is the right, or appropriate, environment for many of the young people who end up there ... in growing numbers which siphon off the resources needed to provide appropriate mental health services, and other support mechanisms and interventions, in the community".
	The YOIs clearly are not settings specifically applicable to children and their use for custody for children should be stopped. It is a goal that will be hard to achieve with the currently unjustifiable high level of children's custody and there should be a drive to reduce the child custodial population. We hope that this amendment will find favour with your Lordships and that, as a result, no person under 18 shall be detained any longer in a young offender institution. I beg to move.

The Earl of Onslow: My Lords, it seems to me mad that we are not much more careful about sending young people aged under 18 to prison. I know that I said this on the previous amendment, but I shall probably say it again and again, because it is mad. It is counterproductive and does not do any good. The only way anything can be done for these wretched children is through education and care, with attention to their mental health, their drug problems and so on. They should not be banged up in adult prisons under any circumstances whatever. In the 21st century, we should not be doing that and we are not a civilised country if we go on doing it. For those reasons, I support the Liberal Democrats. The less we do it, the cheaper it will be. Possibly, we would keep a few more out of permanent trouble, which is what we should always be trying to do.

Baroness Howe of Idlicote: My Lords, I supported this amendment on the previous occasion and of course I do so now. It is absurd that 18 should be thought to be the right age for this. Some 18 year-olds are really childish, while others may only think that they are big guys. To place them in accommodation with hardened criminals does not make any sense.
	The other point made by the noble Lord, Lord Thomas of Gresford, concerned the background of these children. It has taken a long time to get the whole business of how they are treated and how they are restrained looked at, but even now it has been put off for yet a few more weeks while a wider look is taken at what the Government are prepared to do. The time has come for the Government to accept that no 18 year-old should be detained in a prison setting. I am only sorry that there are not more noble Lords who have spoken previously on this issue to set out the position more forcefully than has been the case today.

Baroness Butler-Sloss: My Lords, I am one of those to whom my noble friend referred as having previously spoken on this. I do not think that it is necessary for me to say anything other than that I support the amendment.

Lord Elystan-Morgan: My Lords, I, too, support the amendment. As have so many Members of your Lordships' House on so many occasions, I point out that we in England and Wales bear the legal shame so far as western Europe is concerned on the incarceration of children. I have said many times before, and I make no apology for repeating it, that on a pro rata basis we incarcerate more children than Germany, France, the Netherlands and Norway put together.
	There are huge problems, of course. If these young people are not to be incarcerated in the institutions that exist at the moment, where are they to be put? In many cases local authorities do not have secure accommodation facilities for children and young persons, so if the only practical alternative is to place them in children's homes, I can see the problem; indeed, it was articulated by the noble Lord, Lord Bach, in relation to the earlier amendment.
	The question is therefore what might be called contaminatory influences. If a 17 year-old is placed in a children's home with children of the age of 11 upwards, how much contamination is experienced and suffered by the younger ones through that person's presence? If, on the other hand, that 17 year-old is placed with an 18 year-old in a different sort of institution and where the 18 year-old may well be a much more shell-backed criminal altogether, how do we gauge that level of contamination? I appreciate that it is a difficult issue. However, I applaud the general principle that we should use every possible artifice, exercise our imagination and expend all our energy to ensure that we send fewer children to prison.

Viscount Tenby: My Lords, I support strongly what my noble friend Lord Elystan-Morgan has just said. In fact, we are not talking about sending children aged 18 to adult prisons. As I understand it, the amendment concerns secure accommodation, young offender institutions and secure training centres. But what my noble friend has said is absolutely right: it is a question of the lack of resources at the local level for local secure accommodation. That is what is needed. One or two people have to be taken away from the community; there is no doubt about that. I do not know how many noble Lords have been, as I have, to young offender institutions and to secure training centres. I have been to both. They are not the dreadful places that they are made out to be. The standard of some of the staff is extremely high. However, the basic fact is that sufficient resources are not available at the local level for secure local authority places.

Lord Bach: My Lords, Amendment No. 81 is similar to the amendment moved by the noble Baroness, Lady Linklater, in Committee. We had a full and passionate debate then, as we have had this afternoon in perhaps a smaller way. A number of concerns were expressed, with the emphasis very much on what remains to be done.
	Let me point out briefly what the Government have done over the past few years to ensure that young people under 18 are accommodated entirely separately from young adults and older prisoners. Perhaps the key development was the decision in April 2000 to give the Youth Justice Board responsibility for oversight of the secure estate for children and young people. The board immediately established a discrete estate for boys under 18—in other words, one in which they did not have contact with anyone in custody over that age. It was, and is, a diverse estate, comprising young offender institutions, secure training centres and secure children's homes—three different types of accommodation catering for differing age groups and differing levels of vulnerability.
	Achieving similar separation for girls was much more difficult. Compared with the number of boys in custody, the number of girls is low. That presented problems if we were to succeed in providing establishments of adequate size in reasonably distributed locations. Anyone who was there will not forget hearing the noble Lord, Lord Ramsbotham, who is not in his place today, speaking to the equivalent amendment in Committee and recalling his horror at finding 15 year-old girls in Holloway prison when he inspected it in 1995 in his role as Her Majesty's Chief Inspector of Prisons. The Committee agreed that that was not acceptable. Claiming a small amount of credit for the present Government, I should say that they are to be congratulated in small part on taking the steps necessary to ensure that that does not happen now. That was done by means of a phased programme, first removing all girls under 16 from Prison Service accommodation, then removing all girls under 17 and finally building a series of new special units for 17 year-old girls. Those units have a particular focus on the needs of the young women whom they accommodate and have been favourably reported on by Her Majesty's inspectors.
	The current amendment proposes a single type of establishment for all young people under 18. The Government do not believe that that is either workable or desirable. Just as it was right to separate under-18s from over-18s, it is necessary to keep older teenagers apart from younger ones—indeed, in some ways, the difference between the average 14 year-old and the average 17 year-old is far greater than that between many 17 and 18 year-olds. We do not believe that appropriate separation is possible without a range of types of establishment.
	The diversity of the under-18s estate is a strength and not a weakness. That is not to say that the present arrangements are the last word; clearly there is scope for continued development in the field. For example, ministerial colleagues and I have referred to the work that is being done at Wetherby to build a new special unit for more vulnerable 15 and 16 year-old boys. I would simply ask that everyone concerned with this issue—and I know that the House is very taken with it—recognises not only the scope for further improvement but to some extent what has already been achieved. We have commented a lot on making sure that custody really is a last resort for young people of this age and we have shown our commitment to providing the courts with effective community interventions that offer an alternative to custody.
	I am advised that it is arguable—no more than that—that, because of a drafting error, the new clause that is this amendment would not achieve its intended effect of removing the Secretary of State's power to specify by order additional types of custodial establishment in which a detention and training order could be served, a power that, if it still remained, could be used to reinstate young offender institutions and secure training centres. I mention that because it would be wrong of me not to say that I had received that advice. Because of the general arguments that I have employed this afternoon, I ask the noble Lord to withdraw his amendment.

Lord Thomas of Gresford: My Lords, I am grateful to the Minister for his reply. However, we think that there is a basic principle involved and that the provision put forward by the Government is not sufficient. I am grateful to all noble Lords who have spoken on the amendment. I particularly recall the noble Lord, Lord Elystan-Morgan, referring to our position in the league of shame in Europe. It is important that we should mark our disquiet and our feeling that what is happening at the moment is unacceptable, whether it relates to young offender institutions or secure training centres. No doubt those institutions contain people who are concerned and who work hard to achieve results with young people, but one of the problems is that, as those staff are within the Prison Service, they look for promotion upwards into the adult Prison Service. Some of the specialisation and talents that they develop within the YOIs and STCs are lost. For those reasons, we feel that it is necessary to test the opinion of the House on the issue.

On Question, Whether the said amendment (No. 81) shall be agreed to?
	Their Lordships divided: Contents, 67; Not-Contents, 124.

Resolved in the negative, and amendment disagreed to accordingly.
	Clause 55 [Extension of powers of non-legal staff]:

Lord Kingsland: moved Amendment No. 82:
	Clause 55, page 38, line 3, at end insert—
	"( ) After subsection (1) (designation of non-legal staff) insert—
	"(1A) A person designated under subsection (1) shall only be permitted to carry out any legal activity as defined by section 12 of the Legal Services Act 2007 (c. 29) if he has been authorised so to do by a body which is designated as an approved regulator by Part 1 of Schedule 4 of that Act or under Part 2 of that Schedule (or both) and whose regulatory arrangements are approved for the purposes of that Act.""

Lord Kingsland: My Lords, I move Amendment No. 82 and speak to the other amendments in the group. The general issue raised by these amendments is under what circumstances non-legally qualified CPS employees could appear in certain classes of contested summary cases in magistrates' courts.
	Two issues divide the Opposition from the Government. First, what provision is needed in the Bill to ensure that the summary cases dealt with by non-legally qualified CPS employees should not carry with them a term of imprisonment? Secondly, as a consequence of getting this new power, should these non-legally qualified CPS workers fall within the full purview of the Legal Services Act 2007, passed less than a year ago? This matter was fairly fully debated in Committee, and since then the noble and learned Baroness the Attorney-General very kindly met the noble Lord, Lord Thomas, and me to see whether some resolution could be found to these two issues. Subsequently the noble and learned Baroness has also written to me explaining why that was not possible. I believe that she has copied this letter to the noble Lord, Lord Thomas.
	The first issue is the question of limiting the powers of these non-qualified CPS employees to summary offences which do not carry a term of imprisonment. Our view is that this should be firmly on the face of the Bill. The noble and learned Baroness says that this is not necessary; that if the scheme worked satisfactorily, it would in effect petrify the Government's opportunity to elide summary offences which did indeed carry a term of imprisonment. She believes—and this is no disrespect to her rigorous analysis of any situation before she makes a decision—that if the CPS makes the proposal that now is the time, the fact that she would have to give her imprimatur, or that her successor would have to give the imprimatur, would be enough.
	Had that undertaking been given to me 10 years ago, I might have been more sanguine about the scheme. However, I recall that the Government proposed in the Access to Justice Act 1999 that qualified CPS lawyers should be able to become advocates in the Crown Court. I recall the then Lord Chancellor, the noble and learned Lord, Lord Irvine of Lairg, saying that there was no need to worry because CPS lawyers would be advocates only in circumstances where there was a shortage of members of the Bar, and that these would be only very minor cases.
	What do we see today? We see the CPS advertising for experienced advocates to carry cases through from their initiation right to the moment when they make speeches to the jury. I have read recently the director of the CPS saying that in some parts of the United Kingdom he would expect, over a period of time, 25 per cent of criminal cases to be prosecuted in the Crown Court by CPS employees. This was never intended to be under the Access to Justice Act. I know that the noble and learned Baroness always strives to meet her undertakings; but with the best will in the world, I simply do not believe in an undertaking of the sort that she suggests.
	This limitation must be in the Bill. If in five years' time the scheme works so well that we are convinced that we can move on, then there will be plenty of opportunities to change matters in a future criminal justice Bill. After all, I shall be amazed if there is not one such Bill every year for the next five years and probably for the next 10 years. I do not think it depends on which Government are in power. Just as night follows day, I think it is close to being that predictable. So that is the first issue.
	Secondly, if we are going to extend this right to non-qualified CPS workers, should they be regulated, as are all qualified lawyers, under the Legal Services Act, and in particular, should they be regulated by an approved regulator? The noble and learned Baroness, when we had our meeting with the noble Lord, Lord Thomas, explained how she was developing a scheme with ILEX—the organisation which looks after legal executives—so that non-qualified CPS employees should be able to sign up to the principles of ILEX. I do not think that the negotiations are yet complete, but the idea is that they would slot into the Legal Services Act at that point. I came away from the meeting with the impression—I cannot speak for the noble Lord, Lord Thomas—that once that deal was done with ILEX, the CPS employees themselves would then be regulated by the approved ILEX regulator.
	It turns out from the noble and learned Baroness's letter that that is not so. She reminded us that this class of employee's rights of audience at the court are granted under Section 77A of the Prosecution of Offences Act 1985, and she went on to remind me that, as such, they are specifically excluded from the Legal Services Act 2007 by virtue of paragraph 1(3)(b) of Schedule 3.
	I simply do not regard this as satisfactory. If this class of CPS employee is effectively to perform to the same standards as ILEX, why on earth should they not be regulated by the same person who regulates members of ILEX? It does not make sense to go through the whole paraphernalia of getting them signed up and then exclude the most important responsibility that ILEX has, which is to ensure that its own members live up to what they have signed up to. Why should these employees be excluded? I make that point a fortiori because it is precisely because these individuals are not legally qualified that they need close monitoring by an independent regulator. Otherwise, the only way in which they are monitored is through their contract with the CPS.
	I believe that for both those compelling reasons—a limitation to non-imprisonable offences in the Bill, and the requirement that non-qualified CPS employees should be subject to an approved regulator under the Legal Services Act—our amendment should be supported. I beg to move.

Lord Thomas of Gresford: My Lords, we on these Benches support this amendment. The noble Lord, Lord Kingsland, referred to the meeting that we had with the noble and learned Baroness the Attorney-General. She was good enough to write to me on 14 March. I assume that she sent a copy to the noble Lord, Lord Kingsland. She set out in her letter the way in which designated caseworkers are trained at the present time. That training involves training courses, e-learning—which I take to mean dealing with various questionnaires put on the internet—observation of court procedures and a comprehensive resource pack.
	The candidates have a five-day foundation course, after which they are expected to take the e-learning module and attend a further one-day, face-to-face training course. Thereafter they have to do 16 CPD—continuing professional development—hours a year. Very properly, I have to do 12 hours of continuing professional development each year. I know nothing about the legislation that goes through this House, of course. That is about it: a five-day foundation course, a certain amount of experience in court watching what goes on for a period of time and a one-day further course. On that basis they are to be entitled to appear in court to carry out contested cases.
	I ask your Lordships to compare that with the course of training undertaken by a young barrister to reach the point at which he is able to go into court. He will need a law degree, of course; he will have to spend 12 months passing his Bar examinations; and he will have to spend 12 months in pupilage and will not be entitled to appear in court at all for the first six months. During that time he will be under the close supervision of his pupil master. It is only at that point that it is thought that he can appear in the most modest magistrates' court in a contested hearing.
	Putting the two courses of training side by side, your Lordships can quickly perceive that there is absolutely no comparison. More importantly—this is the point made by the noble Lord, Lord Kingsland—a barrister is subject to regulation. There is a regulatory authority, a very strict code of conduct and a very considerable penalty should he breach that code of conduct in any way. I agree with the noble Lord, Lord Kingsland. I was under the impression that if courses were provided by ILEX, they would lead to an ILEX qualification, which I would respect very much, and that ILEX would act as a regulatory body, but that does not appear to be the case. I hope that the noble and learned Baroness will be able to assure us that it is so, but as I understand her letter that is not intended.
	A further point made by the noble Lord, Lord Kingsland, which I also refer to, is that this is essentially mission creep. In her letter to me the noble and learned Baroness refers to the fact that it may be some years before the CPS seeks to extend the designated case worker remit to summary-only offences where imprisonment is a sentencing option. At the moment the proposal is that a designated case worker should appear only in summary-only offences where prison is not an option. In a few years that will be proposed and no doubt we shall go on from there until, in the end, designated case workers with very limited training will be conducting trials in magistrates' courts to the great detriment, I suggest, of the criminal justice system.
	The amendment proposed by the noble Lord, Lord Kingsland, has our support. While we do not object in principle to designated case workers appearing in court, they must have proper training and they must be regulated. There must be a sanction to ensure that they carry out their functions in a way that is compatible with the principles of the way in which advocacy should be carried out in the courts of this country.

Baroness Butler-Sloss: My Lords, I, too, support the amendment. I am very grateful to the noble and learned Baroness the Attorney-General for keeping me in the loop with copies of letters written to noble Lords and also for a letter of last week from her to me. I retain some concerns. We are dealing with the administration of justice in a criminal court. As the noble Lord, Lord Thomas of Gresford, has pointed out the training of a designated case worker, even with the pack, will not be sufficient in some cases. One has to bear in mind that in the magistrates' court now, magistrates are laymen, the defendant may or may not be represented—probably not by a lawyer—the clerk need not necessarily be a lawyer in the criminal courts these days and is quite often a layman and if the prosecutor has no real experience of the law and a point of law is raised, there will be real difficulty. We also need to be sure that the prosecutor has the ability to cope with the unexpected.
	Two things put forward by the noble Lord, Lord Kingsland, are particularly important. One relates to offences that are not subject to imprisonment. Although the purists among us might prefer a lawyer to conduct the case, as a matter of reality, in the old days a warrant officer sometimes did the case so there is a real precedent for that. But that was not the kind of case where someone might go to prison. Without the absolute assurance that those who have had the pack, a few days' training and the experience of going into court will have someone at their elbow to tell them what to do when the unexpected arises means that they might find themselves not sufficiently independent and certainly not sufficiently clued up about the unexpected. There will be a danger of a miscarriage of justice as a result of which someone might go to prison, particularly a defendant who is unrepresented as so frequently happens in magistrates' courts. Therefore, I very strongly support the fact that the matter should be up front and that those without legal training should not be able to prosecute where imprisonment is a possibility.
	I am also very concerned about the regulation of the designated case worker. I listened with a degree of dismay to what is apparently the present position. Although I, too, respect the ILEX training, I do not believe that its code of conduct begins to be adequate for the importance of the work that it does. The noble and learned Baroness the Attorney-General says that it is working towards a code of conduct similar to that of the Bar and the Law Society. I am absolutely delighted to hear that, but I would prefer designated case workers not to be able to undertake the work until they are actually regulated by that code of conduct. Bearing in mind not just the hours but the days and days spent on the Legal Services Act last year, where everyone was regulated up hill and down dale, particularly for the Bar and solicitors, it is ironic that a group who are not legally trained are able to carry out prosecutions which might involve imprisonment on the creep system, about which we have been told, without the matter coming back to your Lordships' House and the other place. It seems to me that such people should not be able to creep into imprisonment cases, admirable though I am sure they are. If the Minister tells us that some of them are legally qualified, that is fine. However, she will also have to tell us that a great many of them would like to be legally qualified but that they have not yet got to that point. It seems to me that until they get to that point, they need regulation as good as barristers and solicitors and that they should not be able to prosecute cases where someone might go to prison. I am very supportive of the amendment.

The Earl of Onslow: My Lords, an old expression states that if you pay peanuts, you get monkeys. In this case, I suspect that miscarriages of justice could happen, which would arise because people are not properly trained. By miscarriages of justice I mean that the guilty go free and the innocent go to prison. If somebody is not properly trained or regulated, that is more likely to happen than with a proper barrister. That is always possible, as we know of cases where that has happened and should not have done. I suggest that this will happen exactly if that lower standard of people is allowed to prosecute without any regulation or training. The noble Lord, Lord Thomas, read out how much training they have to have; frankly, it is practically less than that for driving a pony in an amateur dressage test. What is required is tiny, and that is not good enough.

Noble Lords: Oh!

The Earl of Onslow: My Lords, If I make good jokes, I am delighted but it brings the point home. That is what should happen, and I therefore support the amendment.

Lord Mayhew of Twysden: My Lords, when the noble and learned Baroness the Attorney-General responds, which I feel sure she will be doing in a few minutes, might she deal with the attitude of the Magistrates' Association? In this clause, we are dealing with procedures in the magistrates' courts. The magistrates deal with 95 per cent or more of all criminal cases tried each year, which is something like 2 million. Is it not the case that the Government, so far as this provision was concerned, got off to a thoroughly bad start with the Magistrates' Association?
	The noble and learned Baroness the Attorney-General will know that the association said, in its briefing prepared for this House before Second Reading, that its priority was,
	"for cases to be properly and efficiently presented to us in court".
	Did it not also say,
	"We are strongly opposed to this proposal"?
	Of course, that was before the adjustments made in the right direction by the Government. However, when the noble and learned Baroness responds, could she say whether the magistrates have been consulted specifically on whether they are content with the present clause—without the deficiencies being remedied, as they would be in the amendment from my noble friend—and what their position is?

Lord Elystan-Morgan: My Lords, this amendment does not have the effect of banning all non-legal staff from court prosecutions. Indeed, it is right that there should be such a power and responsibility within a limited parameter. Nevertheless, I believe that the amendment is to be supported for limiting that within proper bounds. One can summarise the case thus: these people are carrying out an essentially professional function, certainly insofar as more serious cases are concerned. It is only right that they should be professionally qualified and disciplined, and should be answerable to a professional code of conduct insofar as matters outside the ambit of the amendment are concerned.

Viscount Bledisloe: My Lords, I entirely agree with the noble Lord, Lord Kingsland, that it is essential for people fulfilling these duties to be subject to behaving in accordance with how a prosecutor ought. To my mind, it does not matter whether that will in fact lead to prison since, in many cases, being convicted may be very serious for a person who has never been in trouble before even if he is not to be imprisoned for it.
	I do not quite understand the difficulty, since these people can be authorised to carry out any legal activity. They can presumably be told that they can do some activities and not others. Again, however, if such an authorisation is given by a designated body it must be able to remove it. Therefore, there must be a power to deal with people whose conduct is not appropriate for a responsible prosecutor.
	One must remember that it is actually much more difficult to behave correctly when one is prosecuting at very short notice, on a relatively minor offence, a man who is not adequately defended. There is a much greater danger of malpractice there—not deliberate, but inadvertent—with keeping him in than there is in a full-scale trial in front of a puisne judge with representation on all sides and everyone objecting if one strays from the straight and narrow.
	One must also remember, although this is not by way of any criticism, that these people who will prosecute will in fact be employees of the prosecuting authority. There will therefore be an inevitable temptation for them to stray a little to try and achieve the result that they have been sent there to achieve. Again, I am not saying that they will be fraudulent, but it is easy to overstep the mark a little—particularly if, as the noble and learned Baroness, Lady Butler-Sloss, pointed out, there is probably nobody in court who is able to say "You can't do that", because they are not legally qualified to do so. Therefore, it seems essential that anybody entrusted with a prosecution is subject not to professional regulation in the sense that is normally meant but to proper regulation whereby if he strays from the straight and narrow he can either be reprimanded or suspended—or whatever is appropriate.
	I would like some enlightenment from the noble Lord, Lord Kingsland, on the point about not prosecuting in criminal cases. His proposed subsection (1A) says that a person can,
	"only be permitted to carry out any legal activity ... if he has been authorised so to do".
	Surely, that means that it is open to the regulator to say, "You're very green; you can only do very minor cases", or "You have done a lot and are doing it rather well; you can be advanced to a higher level". It would not enter everybody qualified to do anything of which he is capable under this subsection. If I thought that it would be working that way, I would be less worried about the qualification point.
	I take on board what the noble Lord, Lord Thomas, said about the degree of training, which he contrasted with what a barrister has to do. However, a barrister has to be trained to perform in any part of the law, while these people only have to know the relatively narrow procedure for dealing with magistrates' court criminal cases, and so on. Therefore, their training will obviously not be comparable. I have to confess that what the noble Lord, Lord Thomas, read out seemed to stray a little too far in the opposite direction. Again, however, the regulator can surely set how much training there is to be; the noble Lord, Lord Thomas, spoke as though that amount was to be fixed for all time and all types of cases. If it is, that would be bad, but I would have thought one could have different levels of training and degrees of experience for varying case types, and be regulated according to your knowledge and experience.

Lord Neill of Bladen: My Lords, I declare an interest as a barrister. The Bar is opposed to the proposal and the chairman has written to a number of your Lordships. I also declare an interest having once occupied the role of chairman of the Bar Council, so noble Lords can apply or discount what I am about to say. I stress that noble Lords have covered the ground. Without the invidious nature of picking out one of the speeches, I was impressed by the way in which the noble and learned Baroness, Lady Butler-Sloss, summarised things.
	Anyone who has ever sat as a judge or an arbitrator knows that you are enormously dependent on the quality, accuracy and fairness of the advocacy that comes to you. If you do not get proper assistance, for example, in relation to powers of sentencing or whether enactments have been repealed or amended. Stone's Justices' Manual shows the incredible part played in enacting laws and amending earlier ones. The law is difficult; sentencing is difficult; and lay magistrates are entitled to the highest possible quality.

Lord Slynn of Hadley: My Lords, like my noble friend Lord Bledisloe, I do not see where the problem of requiring training and providing for some form of regulation lies. For reasons that so many speakers have already given, which I shall not elaborate, it is quite obvious that it is essential to have people with experience and training to assist the court. This is as plain and ordinary a case for training and regulation than any that the House has discussed for a very long time.

Baroness Howe of Idlicote: My Lords, I shall be extremely brief. As a previous magistrate and someone who is surrounded by lawyers in my family, I may be one of those who have been trained almost by default in many of the procedures. Having listened to the debate, I am completely convinced by the noble Lord, Lord Kingsland, and the noble Lord, Lord Thomas of Gresford, and I pay tribute to my noble and learned friend Lady Butler-Sloss.
	There are crucial things that I would want in a court. A magistrate has a clerk of the court, who is the legal expert on areas of sentencing, for example. However, the issue is not only about that. We need to know that people are being addressed by staff who are thoroughly qualified, able and, above all, independent and regulated. What the noble Lord, Lord Thomas of Gresford, said about training for barristers is crucial. The time taken to experience what happens in a court and so on is vital. The fact that they continue to learn and are independently regulated by ILEX is hugely important. I am thoroughly in favour of the amendment, which I hope will be put to a vote—indeed, all the amendments are crucial.

Baroness Scotland of Asthal: My Lords, I thank all noble Lords who have spoken. First, I need to say to the noble Lord, Lord Kingsland, that as a fully paid-up member of the profession I do not think that the bar is under threat. In the past 10 years, the CPS has been increasingly successful in attracting senior members of the bar and solicitors to work for it. As a result, the quality of advocacy has been significantly enhanced. I do not think that the noble Lord is suggesting that senior members of the bar who are attracted by employment in the CPS should be debarred from so doing. That form of protectionism is far from his heart.
	Quality is most important and I agree with all those who have emphasised it. I do not think that the young bar is frightened of competition either. I hear what the noble Lord, Lord Thomas of Gresford, says about training. He referred to those DCWs who do not do contested cases. The training for those who do such cases is much greater. I gently say to him that one often finds that those who have had 20 or 30 years' experience working in the Courts Service before becoming designated caseworkers know a thing or two more than a 21 year-old young barrister who is doing his or her first cases.
	Quality is important and I remind the House that the DCWs about whom we are talking have been around and able to perform this work since 1998. They have gained a great deal of practical experience in the court process and through that experience they are well equipped. Who does this work? The average age of a designated caseworker is between 30 and 49; 68 per cent are women and 32 per cent are male; and 71 per cent are in the age bracket that I have just described. They are seen as a good, sound resource. Many of them participate in obtaining qualifications. Twenty-nine are studying for legal qualifications; 22 are studying for their legal practice certificate; and seven are on the bar vocational course. Between 1998 and 2008, 566 DCWs were trained by the CPS. The noble and learned Lord, Lord Slynn, and the noble Viscount, Lord Bledisloe, are right that training can be tailored to meet needs.
	DCWs will be doing three tiers of work. Some will do summary cases only. Let me give the House the flavour of summary cases. They include common assault, drink-driving, threatening behaviour, harassment, taking without consent, wasting police time, assaulting a police officer, being found in enclosed premises and motor vehicle interference. For non-imprisonable offences, DCWs can go to the dizzy heights of prosecuting speeding, careless driving, no insurance, no driving licence, no MOT, construction and use regulations for motor vehicles, ticket touting, touting for hire services, begging, selling alcohol to a person who is drunk, kerb crawling, soliciting, the offence of dogs worrying livestock—a terribly difficult matter—being drunk in a public place and obstructing the highway. We are not talking about the most serious offences, although I am not suggesting that these offences are unimportant.
	We are considering an incremental situation starting with tier 1, so that when someone first becomes able to present cases they will be summary offences only. Tier 2 will be summary offences only and non-imprisonable. A gradual increase is appropriate at this stage. I understand those who say that all the matters dealt with by designated caseworkers should be non-imprisonable. I made it clear the last time we debated this matter that that would be regulated by the director's instructions. We have an opportunity to regulate what DCWs do. I understand the comment of the noble Earl, Lord Onslow, about paying peanuts and getting monkeys, but I assure him that DCWs do not fall within that category. Miscarriages of justice occur when the quality of the advocacy is not good.

The Earl of Onslow: My Lords, that is exactly the point that we are making. Somebody should be regulated and tested to make sure that they can do all the things that the noble and learned Baroness says. That is all one is asking for. In other words, the fact that they can do all these things is one thing, but they should be trained and they should be disciplined if they get it wrong.

Baroness Scotland of Asthal: My Lords, they are trained; they are regulated by the CPS; they are properly managed. They have access to supervision by a trained lawyer all the way through. The new procedure, which noble Lords will be aware of, is that a qualified lawyer will look at each case, will be responsible for the charging decision that is made and will be able to prepare matters in order to decide whether a case is amenable and should be dealt with by a DCW or some other form of representation. The noble Earl's concerns about management, control, testing, training and ensuring quality are certainly covered by the management structure of the CPS. I remind the House of the National Audit report, which spoke very favourably about the quality of DCWs. I understand the concern that has been expressed, but that concern is not merited.
	I would like to answer before the noble Lord, Lord Thomas of Gresford, rushes to his feet. I ask him to give me that courtesy, if he would not mind.
	In the concerns that have been expressed, the noble Lord, Lord Kingsland, raised the issue of the codes within the regulatory framework of the Institute of Legal Executives. As I said, professional integrity is the cornerstone of the current Crown Prosecution Service statement of ethical principles. It is enshrined in the codes of conduct and advocacy of the Institute of Legal Executives. The harmonisation of these codes with those of the institute will ensure that designated caseworkers provide the same ethical safeguards to the court as the other legal professions. It follows, therefore, that compliance with the current and future codes within the regulatory framework of the Institute of Legal Executives takes precedence. Regulation by the institute will be every bit as meaningful and robust for designated caseworkers as it is for barristers and solicitors. I do not envisage any circumstance where a designated caseworker or, indeed, a Crown prosecutor would face criticism from his or her line manager for putting those ethical responsibilities first.
	In responding to Amendment No. 82, I believe that it is important to emphasise that the CPS voluntarily sought regulation from the Institute of Legal Executives for its designated caseworkers. There is nothing to be gained by placing such regulation on a statutory footing. As I hope I made clear in my letters, to do so would require a significant amendment to the Legal Services Act 2007. At present, and by virtue of the fact that designated caseworkers are granted their rights of audience through statute, they are currently exempt from regulation under the Legal Services Act. This, I believe, was debated when that matter was going through. To amend the Legal Services Act would be disproportionate and unnecessary, given the public commitment of the CPS to working closely with the Institute of Legal Executives to bring about meaningful regulation. I am very happy that the noble Lord, Lord Kingsland, referred to that matter in his remarks.
	Perhaps the overriding concern is reflected in Amendments Nos. 83 and 84. A designated caseworker may deal with cases where the nature of the offence may leave the defendant liable to a sentence of imprisonment. I have made it clear that the Crown Prosecution Service would internally limit the deployment of designated caseworkers, using the DPP's statutory powers under the Prosecution of Offences Act 1985 to issue general instructions. I remind the House that those instructions have been in situ for the past 10 years; they have worked extremely well and no one has suggested that they have not properly regulated the way in which designated caseworkers have done their jobs. This would have the same practical effect as limiting the clause. I have also made it clear that there would be the added safeguard of the Attorney-General, who would have to consent to any change. I am happy to repeat those undertakings today.
	However, in light of the concerns that have been expressed both on the last occasion and today, I also propose that an independent review be undertaken by Her Majesty's Crown Prosecution Service Inspectorate and that independent advice be provided to the Attorney-General before any decision is made to remove or amend the internal restriction. I hope that this added safeguard will reassure the House on this important point. There would be an independent scrutineer of whether it was appropriate to make a change before any such change took place.
	An important general point needs to be taken into account in considering the merits of this clause. The ability of the Crown Prosecution Service to grow and encourage the development of designated caseworkers through the Institute of Legal Executives route is one that we should all commend. We have for many years expressed a desire to make the profession more open to both genders and to people from minorities. We know that women and members of the black and minority ethnic community often find it difficult to go immediately from school to university but work very well once they are in a situation where they can be trained and come forward. We have found that designated caseworkers have been a very rich vein. One designated caseworker is now the chief prosecutor in Devon and Cornwall; she is acknowledged to be of real value.
	There is merit for the criminal justice system. Fellows of the institute who attain the advocate certificate have wide-ranging powers. To limit those powers in the clause would be to miss an opportunity to use their talents to prosecute a wider range of summary trials, including those where imprisonment is a sentencing option. I remind the House that it takes five years of additional training before an ILEX member can get an advocate's certificate, so that they are fully conversant with all those important technical issues.
	The noble and learned Lord, Lord Mayhew, asked about the Magistrates' Association. He is absolutely right: the Magistrates' Association expressed anxiety about the move and was antipathetic to it. The noble and learned Lord, Lord Mayhew, is also right that it spoke about the unamended version of the first iteration of this clause. I have written to it subsequently. I do not have a letter from it, but I understand that in conversations with the CPS it has indicated that it is happier now with the status. However, it still expressed some concerns about the details. I am afraid that I do not have anything in writing, so I cannot tell noble Lords what particular detail might have caused continuing difficulty. The association is certainly happier. The issue about which it was concerned was similar to that voiced in this House about imprisonable offences.
	I turn, finally, to where we are now. Amendment No. 84A would remove paragraph (d) of the definition of a preventative civil order. The effect of this amendment, which the noble Lord, Lord Kingsland, did not speak to, but I assume he still wishes to—

Lord Kingsland: My Lords, I had imagined that that matter would be dealt with by the noble Lord, Lord West of Spithead, but I did not see him in his place so I omitted to say anything about it. However, we think it wholly inappropriate for a non-legally qualified CPS employee to deal with a VOO, which is an assessment of whether or not somebody is safe to remain at large in society. It is wrong for somebody who is not legally qualified to deal with a matter which could lead to indefinite incarceration.

Baroness Scotland of Asthal: My Lords, I hope that I will be able to assist the noble Lord. The effect of the amendment, as he suggests, would be to remove the general power of designated caseworkers to conduct post-conviction applications or other civil proceedings to obtain preventive orders that do not come within the ambit of paragraphs (a) to (c) of the definition. At present, the only orders to fall within paragraph (d) are the sexual offender prevention orders. However, while sexual offender prevention orders would fall within this paragraph, the only role of the prosecutor is confined to reminding the court that it has the power to make such an order and not to lead any evidence. That is literally what they do: they just remind the court. I do not think that the noble Lord would take issue with somebody being entitled to remind the court of its duty in that regard.
	In essence, therefore, the primary purpose of paragraph (d) is to ensure that designated caseworkers have rights of audience to conduct proceedings were any new orders to be introduced through future legislation. This would of course be subject to the director's guidance as to whether the CPS thought it appropriate for them to appear. In reaching such a decision, due regard would have to be paid to ensuring that their powers were no more than those capable of being exercised by a Crown prosecutor. I hasten to add that violent offender orders would not come within the remit of a designated caseworker, as Part 7 of the Bill provides for applications for such orders to be made by the police and not by prosecutors. So that would not be within their purview. I understand the noble Lord's anxiety on that, and I am happy to assure him that I can ease his troubled heart.

Lord Thomas of Gresford: My Lords, the noble and learned Baroness wished me to remain in my seat until she had finished her response. I have done so, although I wanted to ask, in the context of what she was saying, about an article by Frances Gibb which appeared in the Times on 19 February. It was headed:
	"'Barely trained' paralegals will be forced to take CPS cases to trial".
	The noble and learned Baroness must have read it, as it is very much within her area. It states:
	"An internal survey for the Crown Prosecution Service has found that only half the 400 paralegals who will take on the contested—or 'not guilty'—trials felt that they had had enough training. A third said that they were under pressure to do court work that fell beyond their abilities".
	That is described as an "internal survey" for the Crown Prosecution Service. Was there such a survey—was that a correct statement? If so, how does it accord with everything that the noble and learned Baroness has told us about the training of those intended to undertake this work?

Baroness Scotland of Asthal: My Lords, I understand that a survey has been carried out but I do not know its final results; I have not seen a report. However, I can point to issues to which I alluded in Committee—namely the reports from Her Majesty's inspectorate and from the Audit Commission, both of which speak highly of outcomes and the professionalism of those who undertake this work. I can also reiterate the CPS's commitment to ensuring that designated caseworkers who undertake representation in court have the necessary skills. As noble Lords will know, there are designated caseworkers who do not appear in court. We have, as I said earlier, a number of tiers of designated caseworkers. One of the benefits of the tiers is that those who qualify as designated caseworkers can move through the system obtaining greater training and opportunities, either becoming ILEX members or taking solicitors' or barristers' exams. We therefore have the full spectrum.
	The moderated provisions which we have put forward meet the concerns that noble Lords have raised. All of us agree that DCWs should not do work that could involve an individual going to prison; we absolutely agree on that, and we believe that the provisions we have put forward would cope with that. If the House were to disagree to the amendment and the Bill were to provide that DCWs should have no opportunity to do work that might involve imprisonment, we could have an order-making power, probably an affirmative power, so that the matter could come back in that way. It is unnecessary to use the panoply of primary legislation to deal with an issue which could be dealt with by order. I hesitate to use the phrase used by the noble Earl, Lord Onslow, but it really would be taking a sledgehammer to crack a nut. I know how much the House dislikes that.

Baroness Carnegy of Lour: My Lords, I have listened with enormous interest to this debate. It seems that much the most important thing was said by my noble and learned friend Lord Mayhew when he asked about the magistrates' view. The most important thing that the noble and learned Baroness has said to us is that the magistrates have said that they are happier, but not yet happy. She was unable to tell us the precise areas in which they are not happy because they have not yet written to her.
	Speaking as somebody who sat not as a magistrate but as the Scottish equivalent, an honorary sheriff, I think that the whole question hangs on whether the magistrates feel that cases will be put properly before them and they will get the help they need in making decisions. I suspect that magistrates need that help more than other judges do, and it is important that they get it. That seems the overwhelming problem. It is a complicated matter, but if the magistrates are not yet happy with the arrangement, the House ought not to reject the amendment.

Baroness Scotland of Asthal: It is difficult, my Lords. I wrote to the chairman of the Magistrates' Association on 12 March, and I know from experience that when the Magistrates' Association is keenly concerned and/or anxious, it will write back speedily. I have not yet received a response. Because I had not received a response, an inquiry was made, and the indication which I have given to the House was given to those who instruct me. I therefore cannot help the noble Baroness on the magistrates' current position. All I can do is to assure the House that the CPS's primary concern is to ensure that the quality of the prosecution given to the magistrates is of the highest quality.
	We have had no reason to think that the designated caseworkers who have been given power to present cases have been found wanting; they have not. They have done their job and done it well. That is something for which they should be commended.

Lord Kingsland: My Lords, I thank the noble and learned Baroness for her full reply and thank all noble—and noble and learned—Lords who have spoken in this debate. I ask forgiveness from all of your Lordships if I do not refer to each excellent contribution.
	The noble and learned Baroness expressed concern about my troubled heart. If I may plagiarise a famous line from the film "Casablanca", my heart is my least vulnerable organ.
	The noble and learned Baroness seemed to suggest that the leitmotif of my intervention was that the Bar was under threat. I respectfully suggest that either I misspoke, as a famous lady across the Atlantic said, or at least I did not speak with enough clarity. My proposition is not that the Bar is under threat from the Government's proposals, but that the defendant is under threat as a result. That is the basis for all the concern that we have been expressing this afternoon.
	I agree with the noble and learned Baroness that the Government share our view that, at this juncture, it is appropriate for non-qualified CPS employees to deal only with summary offences that do not have a sentence of imprisonment at the end. There is no difference between us on that matter. The only question is whether we want to go a step further some years hence. Should the Government have to come back with primary legislation or can this matter be dealt with more informally? The noble and learned Baroness with typical generosity made a concession in saying that she would introduce a further safeguard of an independent qualified lawyer to look at a proposal by the CPS to make this transition. I am grateful to her for going to the trouble of doing that, but on balance I still prefer our amendment.
	I have no doubt whatever about the quality of DCWs. There are many extremely well-qualified DCWs in the CPS, but the noble and learned Baroness will have heard many of your Lordships express concerns about the adequacy of the training that they are likely to receive. I am particularly exercised by the fact that, although a deal will be struck with ILEX on these matters, which I hope will be satisfactory—I am thinking particularly of the remarks of the noble Viscount, Lord Bledisloe, on the issue—it is also important that they are seen to be properly qualified. That is why the intermediation of an approved regulator is so important. I accept that that is prohibited in the 2007 Act because of the provision in Schedule 3; but if these amendments are passed by the House that will be a later proposal and therefore the provision in the 2007 Act will fall.
	I am grateful for the Minister's assurance about the VOOs, but frankly this matter should not be handled in any circumstances and in any way by DCWs. For all those reasons, I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 82) shall be agreed to?
	Their Lordships divided: Contents, 183; Not-Contents, 113.

Resolved in the affirmative, and amendment agreed to accordingly.

Lord Kingsland: moved Amendments Nos. 83 to 84A:
	Clause 55, page 38, line 5, at end insert "or offences which are punishable with imprisonment"
	Clause 55, page 38, line 18, after "courts" insert "other than trials of offences triable either way or offences which are punishable with imprisonment"
	Clause 55, page 38, leave out lines 31 to 35
	On Question, amendments agreed to.

Lord Ramsbotham: moved Amendment No. 85:
	After Clause 58, insert the following new Clause—
	"Looked-after children in custody
	Assistance for looked-after children in custody
	After section 61A of the Criminal Justice Act 1991 (c. 53) insert—
	"61B Assistance for looked-after children in custody
	(1) This section applies to—
	(a) a child looked after by a local authority who is taken into custody;(b) a child or young person being held in custody who was previously being looked after by a local authority;(c) a child or young person who has been released from custody but who was, prior to his or her detention, being looked after by a local authority; and (d) a child or young person—(i) who is of a description prescribed by regulations made by the appropriate national authority; and(ii) in relation to whom the regulations impose the duties in this section on a local authority.
	(2) It is the duty of the local authority—
	(a) to appoint a person who shall act as the caseworker to the person to whom this section applies;(b) to arrange for appropriate advice, support and assistance to be available to a person to whom this section applies.
	(3) The caseworker appointed under subsection (2) must, so far as is reasonably practicable, be a person who is acting as a caseworker for the relevant person prior to that person being taken into custody.
	(4) The caseworker shall have a duty, so far as is reasonably practicable—
	(a) to maintain an ongoing relationship with the young person in custody; and(b) to advise and assist him with a view to promoting his welfare.
	(5) The duty contained in subsection (4) shall, so far as is reasonably practicable, continue after the young person has left custody.
	(6) The duty contained in subsection (2)(b) only applies to a young person over 18 years of age if that person seeks the relevant advice, support or assistance.
	(7) The duties imposed by subsections (2), (4) and (5)—
	(a) are to be discharged in accordance with any regulations made for the purposes of this section by the appropriate national authority;(b) are subject to any requirement imposed by or under an enactment applicable to the place in which the person to whom this section applies is held in custody.
	(8) Regulations under this section for the purposes of subsection (7)(a) may, in particular, make provision about the frequency of visits by the caseworker to the young person in custody and upon his release from custody.
	(9) In choosing a caseworker the local authority must satisfy themselves that the person chosen has the necessary skills and experience to perform the functions of a caseworker under this section.
	(10) In this section—
	"held in custody" means held in detention by the police, prison service or other court authority and "taken into custody" and "released from custody" shall be construed accordingly;
	"the appropriate national authority" means—
	(a) in relation to England, the Secretary of State; and(b) in relation to Wales, the Welsh Ministers.""

Lord Ramsbotham: My Lords, I shall be brief. The amendment has been tabled to this Bill and to the Children and Young Persons Bill for very deliberate reasons. It seeks to add a requirement that social workers who are responsible for young people in the community stay as caseworkers with them for any period of custody to which they may be ordered. Currently, under the detention and training order regime, the consistency of supervision maintained throughout is critical at the vital stage when a person leaves custody and returns to the community. Therefore, it must make sense for the person who was previously responsible for the young person in the community to carry on with that responsibility when custody is over.
	Many noble Lords may wonder why it is necessary to put the requirement in the Bill because it ought to be happening already. Tragically, it is not—the amendment would not be necessary if it were. That is not to say that the practice happens nowhere: there are some very good caseworkers who make it their business to stay with their people when they go to custody. However, it is not a statutory requirement. The Department for Children, Schools and Families says that it will include the requirement in instructions, but, sadly, I do not feel that that is good enough.
	The statistics show that the children who are ordered into care are the most vulnerable within the young offender estate. Tragically, their reoffending rate is not helped because there is so little consistency in their treatment after release. They lack the parental support which others have. Therefore, I strongly feel that the requirement should be put into the Bill. It links with so much other legislation now being taken through your Lordships' House—particularly the Children and Young Persons Bill—and therefore I beg to move.

Baroness Falkner of Margravine: My Lords, my name is attached to the amendment. The noble Lord, Lord Ramsbotham, clearly set out why it is so fundamentally important, so I will cover only a few of the main issues. We know that children in care are overrepresented in the secure estate population. Approximately 40 to 49 per cent of children and young people in custody have been in local authority care, and about 18 per cent are still subject to statutory care orders. This is a particularly vulnerable group of children who are most likely to experience resettlement problems on release.
	We on these Benches believe that any child removed from their ordinary care arrangements by the state should be understood to be looked after by the state, both in the spirit of the term and by statute. Even those children who are sent to custody directly from their parental home, without being subject to any current or former care arrangements with the local authority, are, to all intents and purposes, being removed from any effective parental supervision and responsibility. In other words, it should be recognised that they move into the care of the state. The Government will argue that, under current arrangements, the youth offending team will have case responsibility. We would say that the main function of youth offending teams is to prevent reoffending, and that while they are required to take account of the holistic needs of the child, they do not have a primary welfare function. While they were originally established as multi-agency teams, with staff from a number of sectors, over time these links have become extremely tenuous and youth offending teams now often consist of generic youth justice workers. For this reason, we feel that children who are looked after, whatever their status and whether or not they are eligible care-leavers, should continue to have involvement from their own child and family social worker throughout their period in custody. That would be the holistic way to manage them, and it is not currently the case.

Lord Elystan-Morgan: My Lords, I, too, support this amendment completely. I am sure that it will be the Minister's case, when he replies in a moment, that to a large extent this already represents the pattern of things. That being so, my plea would be that there is no earthly reason why it should not be spelled out in statute. At no time is the need for this support as great as when a young person goes into custody. This is the interface between the two systems—two systems that unfortunately show a massive over-representation in the custodial system of children who have been in care. They are over-represented by something like 15 to 1—I think that is the relevant statistic. Therefore there can be no earthly argument for not spelling this out in a specific way. It does not extend the law; it does not extend the practice; but it clarifies the minds considerably of those who are involved in these responsibilities.

Baroness Howe of Idlicote: My Lords, I have seldom been happier to see my noble friend Lord Judd—and he certainly is a friend, even if he is on a different Bench—appear suddenly on the Labour Benches. We have been missing him all day and he has arrived for just the right clause.
	I very much support this clause. As my noble friend Lord Ramsbotham said, our debates on the Children and Young Persons Act went through it, too. We are dealing with the most vulnerable group of people that you can think of. They have almost certainly suffered from the many problems that we have heard read out during these debates. Having a supportive worker in touch with them could make all the difference to whether they reoffend. I stress one thing—emphasis is laid on the particular worker chosen having the necessary skills, and I do think that that is frightfully important. But as well as that, there should be some degree of choice for the young person concerned. I hope that that will be borne in mind. Above all, they need a mentor who will take them through the more difficult periods of coming out of some form of custody and back into the real world—giving them advice on education, skills training and other things. I very much support this amendment.

Baroness Butler-Sloss: My Lords, I, too, support this amendment and also speak to Amendment No. 85A, which is linked. Actually, it is a stage before Amendment No. 85—it is a new amendment that comes through the Standing Committee for Youth Justice. The committee has asked me to put this forward, which I am very happy to do. It bears a certain resemblance to my earlier amendment, to make Section 37 of the Children Act 1989 part of the youth justice system. This is intended to amend the Children and Young Persons Act 1969, Section 9, in a similar way. We are back, on both amendments, to the welfare of the child appearing in the youth court.
	The local authority has an obligation, where a child is looked after or in need, to provide proper proposals for that child and, where appropriate, a care plan. Lying behind Amendment No. 85A is the need for careful communication and working together between the social workers of the home local authority and the YOTs. Often, there is a lack of that working together, and a lack of communication. In too many cases, there appears to be a feeling by home social services departments that, when the child is coming up before the youth court, it is the job of the YOTs, which of course include a social worker, to get on and deal with the child. They get asked by the YOTs, from time to time, what proposals they have for the child. All too often, the home local authority says, "We'll wait to see the outcome of the court proceedings". That is not good enough, because the YOTs, and the magistrates of the youth court, would find it extremely helpful to know what social services think should happen; and to know the contents of the care plan for the child who is looked after. There should be a genuine working together between the local authority, which has the care of the child, and the YOT that is taking over—but should not be taking over to the exclusion of the home local authority and, of course, the court, which needs all the help that it can get.
	The excellent White Paper, Care Matters: Time for Change, summarises clearly the indisputable evidence of the poor outcomes for children who are in care, particularly the children who get into trouble and end up in the youth court. That admirable document is a reflection of a series of system failures. It is those system failures that this amendment is intended to address. We need to put pressure on local authorities—overworked, understaffed, under-resourced—that all too often say, "That person is now the subject of the YOT and the criminal court. We can sit back and deal with the child who has not yet got there". It absolutely is not good enough for the local authority to take a back seat.
	The Howard League for Penal Reform has taken up a number of serious cases of children who have not been identified by the agencies—children who have slipped through the net. There is a need for effective structures that are at present lacking. The purpose of giving the criminal court power to seek help from the home local authority, which is not here at present, is to give the YOT and the court proper help from the home local authority. It is to plug the gap and provide real pressure—a kick up that which I would not mention in this august Chamber. We do need home local authorities to play a proper part and they are not doing so in too many cases. These are children for whom the local authority is responsible and if, as I sincerely hope, Amendment No. 85 is agreed to by the Government, they would have help from the home local authority at the point where they go before the youth court, and before and after they go into custody. We must remember that these children who offend are children in need, children who have welfare concerns, and they are not getting the help that they need.

Lord Hunt of Kings Heath: My Lords, we return to the question of youth justice. I suppose there have been two overriding themes in our debates; first the question of the number of young people in custody and the support given to them and, secondly, the important question of the inter-relationship between the criminal justice system and local authorities.
	Noble Lords are absolutely right to bring us back to this point, because clearly if we are to have an effective criminal justice system and if we are to achieve the outcomes that we wish to achieve in the prevention of offending and reoffending—to come back to our previous debates on this—it is absolutely critical that there is a strong partnership relationship between local government and the criminal justice system, particularly the YOTs. That point is very well made indeed. I certainly accept the argument made by the noble Lord, Lord Ramsbotham, that we have to secure consistency of approach. I very much agree with that and with the intention behind much of this amendment, which is to ensure that local authorities provide the right kind of support to children and young people in custody who they have looked after or who remain in their care. There are many aspects of the intention behind this amendment that the Government support. As noble Lords will be aware, the amendment duplicates much of the effect of Clause 16 of the Children and Young Persons Bill, which was recently debated in your Lordships' House.
	The policy intent underlying the provision in the Children and Young Persons Bill in relation to children in custody is to make sure that services for that very vulnerable group of children are effectively co-ordinated, so that they have the necessary support to re-establish themselves in their home area. For some young people, this support will mean being provided with accommodation, foster care or a children's home, for example, and this would mean that they would again become "looked after" in the formal sense.
	The Children and Young Persons Bill will ensure that there is a statutory framework in place so that local authorities maintain contact with children who they have looked after and who are involved with youth justice services. The purpose of that contact will be to maintain continuity with the child and to assess what support the child may need on release, including whether they should again be provided with accommodation by the local authority.
	As the noble Lord, Lord Ramsbotham, implied, following the response of my noble friend Lord Adonis in the debate on the Children and Young Persons Bill, we will use the powers in that Bill to require the local authority to visit children who were provided with voluntary accommodation by the authority who are no longer looked after as their status is dependent on provision of accommodation. That will ensure that all the children within the scope of proposed new subsection (1)(b) of the amendment will receive visits. As my noble friend Lord Adonis has made clear, the intention is that these visits will ensure the continued involvement of local authority children's services by maintaining regular contact between the child and the local authority.
	We are not at present able to make firm commitments as to the detailed content of the regulations and guidance about how the visiting duty towards looked-after children in custody will be discharged. We will, however, ensure that the arrangements for local authority representatives are compatible with the sentence planning, case conference and resettlement meetings while the child is in custody. I say to the noble Baroness, Lady Howe, that I very much warmed to her use of the word "mentor" in that regard. We have made it clear that as far as possible—one has to understand the practical challenges involved here—we would expect the local authority representative undertaking these visits to be a professional who is known to the child. We do not think that this function should be carried out be a member of a youth offending team, and we will make that clear in statutory guidance.
	The visiting role should, overall, mean that local authority representatives ensure that the child is properly safeguarded, that their welfare promoted, that staff in youth justice services have the relevant information about the child's past experiences and that children's services are fully participating in planning for supporting the child in the community on release. In developing the new regulations and the guidance we will consult widely, which will involve the Youth Justice Board, Her Majesty's Prison Service, voluntary sector organisations and local government, so that the input from children's services complements and adds value to the support already provided by the youth justice system.
	I appreciate that this issue has been raised in debates and that my noble friend Lord Adonis has corresponded with the noble Lord, Lord Ramsbotham, with more detail about how we intend to ensure that children who are or who have been looked after in custody receive better support. I reiterate that the Government share similar concerns to the noble Lord and other noble Lords, and that we are taking action on that basis.
	Amendment No. 85A was spoken to by the noble and learned Baroness, Lady Butler-Sloss. I congratulate her on the ingenuity of her drafting, since she has used the points that I made against her when we debated this in Committee. The amendment would extend the existing power to direct an investigation to require a local authority to include in its report to the court plans or proposals for working with the child or, if it had no such plans or proposals, why it made that decision. In addition, the amendment would require the local authority, where the child is looked after, to provide the court with a copy of the full care plan, as she so eloquently described in her speech, including additional steps to take if the child were to be convicted of the offence.
	I remain of the belief that there is little need for this power in view of the responsibility under the Crime and Disorder Act 1998 for youth offending teams to provide reports to the court on young offenders. The youth offending team is attached to the local authority, and its multi-agency status should mean that it is best placed to draw together all the relevant information when compiling a report on a young offender. That is probably why the courts do not use the Section 9 power to order a local authority to undertake an investigation of the young offender.
	I say to the noble and learned Baroness and to the noble Baroness, Lady Falkner, that I understand their points about what they described as local authority disengagement. I understand their concerns, and I accept that more needs to be done to ensure that youth justice bodies and children's services work together more closely, but it is not a matter of legislative provision; it is a matter of practice. The question is how we ensure that we get better practice. I do not think there is any doubt about that. We are looking at the youth crime action plan, where we are looking at the relationship between youth offending teams and children's services, which will inform the further development of plans for the youth justice system. I hope that will pick up many of the points that noble Lords have raised today.
	Since this debate very much turns on the performance of local government and its inter-relationship with the criminal justice system, I add that we think that the Children and Young Persons Bill is addressing a gap in the statutory provisions. The joint sponsorship of youth justice by my department and that of my noble friend Lord Adonis is a very strong step in the right direction in ensuring a much more complementary and integrated approach, and getting that right at national level has an influence on how YOTs and local authorities should work together in the future.
	I have already mentioned in our previous debates the impact of the YOTs inspection regime. As noble Lords will recall, that is a regular inspection, which identifies successes and weaknesses in the performance of YOTs. That enables us to pinpoint areas where performance needs to be improved. I mentioned again the youth crime action plan which will be informed by our debates.
	Finally, I shall mention the local authority performance framework in general. While I would not wish to bore the House with a detailed exposition of our new approach to performance management within local government, given the critical importance of youth justice in helping local authorities meet some of the pressures that they face, I am sure that focusing on a smaller number of statutory targets will help to ensure the consistency we all want to see.
	I do not accept that changes in statute are required. What is required is an improvement in performance and consistency. I hope that I have enabled noble Lords to be satisfied that the Government are far from complacent in this area. We are committed to doing all we can to improve performance and to ensure that there is an integrated approach between YOTs and local authorities so that these very vulnerable young people get the right kind of support.

Lord Ramsbotham: My Lords, I thank the Minister for replying in his customary full and courteous way. I listened in particular to the last mention he made of the importance of the YOT inspection regime because that is crucial if there is to be any reassurance about oversight and improvement in performance. I have been greatly reassured by correspondence with the noble Lord, Lord Adonis, in which he stated that it is intended that the instructions should be in the guidance. However, the oversight has always concerned me. Up until now, the oversight that should have been there has not achieved its aim. I hope that the guidance will include direction to YOT inspection teams that they should check to see that every young person in care has a case worker with him. If there was full assurance that that was the case, the performance would be overseen.
	However, as the Minister will be aware, I still remain unhappy that that is not in statute. I have been watching it very closely for the past 12 years and it particularly concerned me that the oversight of child protection procedures that should have been taking place in young offender establishments did not take place because somehow people thought that it did not apply. I accept what the Minister said, but I feel that I must test the opinion of the House.

On Question, Whether the said amendment (No. 85) shall be agreed to?
	Their Lordships divided: Contents, 66; Not-Contents, 99.

Resolved in the negative, and amendment disagreed to accordingly.
	[Amendments Nos. 85A and 86 not moved.]

Lord Bach: My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, I suggest that the Report stage begin again not before 8.42 pm.

Moved accordingly, and, on Question, Motion agreed to.

Immigration (Biometric Registration) (Pilot) Regulations 2008

Lord West of Spithead: rose to move, That the draft regulations laid before the House on 11 March be approved.

Lord West of Spithead: My Lords, we are committed to securing the United Kingdom's borders, improving immigration control and reducing identity abuses as part of our wider national identity scheme. We introduced the biometric registration powers in the UK Borders Act to allow the Secretary of State to issue, in time, secure and reliable biometric documents to all foreign nationals who are subject to immigration control. By recording a person's fingerprints, we can fix them to a single identity and make it possible to check their identity against centrally held records. This will help to strengthen our border security and to combat illegal migration and identity abuses. These powers will also be the way in which we comply with a forthcoming European regulation that will require the UK to issue a biometric card whenever it grants a foreign national leave to remain.
	We will roll out the identity cards from the end of November 2008. The cards will confirm the holder's immigration status and entitlements to work and to access public funds in the UK. The regulations are the first set of regulations to be made under the biometric registration powers in the UK Borders Act, and are designed to enable us to operate a pilot to test the biometric enrolment technology and processes. We will test some of the processes and technology by enrolling the fingerprints and photographs of around 10,000 foreign nationals who are subject to immigration control. Under this pilot, the biometric immigration document, which is the technical name for the document issued under the Act, will be issued to those granted leave to remain in the form of a vignette sticker attached inside their passports. This is the same as the one that is currently issued because the pilot is about testing limited biometric enrolment processes and not about testing the actual identity card.
	I will set out what the regulations are designed to achieve. The first five regulations concern the name of the regulation, the date of the pilot, definitions and the categories of those who are required to apply for a biometric immigration document. The regulations will affect those foreign nationals applying for leave to remain as types of student, spouses, civil partners or unmarried partners under the immigration rules. They will be required to apply for the document, as will their dependants, when making an application in person at the public inquiry office in Croydon, or, if applying by post, if they reside in one of the London postcode areas listed in the schedule to the regulations. It is also provided that the application for leave to remain is made within the period of the pilot.
	The next set of regulations, Regulations 6 to 9, concern the collection of biometric information. Regulation 6 enables an authorised person to require a person applying for a biometric immigration document to provide a record of their fingerprints and a photograph of their face. Where the Secretary of State already has a person's biometric information, Regulation 7 allows her to use or retain the biometric information she already has in her possession, rather than requiring the person to come in for a second time to enrol their biometric information where this is unnecessary. Regulation 8 provides safeguards for registering the biometric information of children under 16. In essence, biometrics can be taken from a child under 16 only if a parent, guardian or other adult who takes responsibility for the child is physically present. The processes by which the biometric information may be recorded are set out in Regulation 9. This regulation permits an authorised person to require the person to make and attend an appointment within a specified timeframe and place and to specify any documents that they must bring to the appointment, or action which they must take, to establish their identity.
	Regulations 10 to 13 are concerned with the use, retention and destruction of biometric information held by the Secretary of State. Regulation 10 sets out the various purposes for which the Secretary of State can use biometric information collected under these regulations. They reflect the purposes contained in Section 8 of the UK Borders Act 2007, but with two additions. Regulations 11 to 13 set out when and how biometric information held by the Secretary of State should be destroyed or access to that information blocked. They are similar to the safeguards in the existing biometrics legislation.
	Provisions about the issue of biometric immigration documents are set out in Regulation 14. The Secretary of State may issue a document to a person to whom she has decided to grant leave to remain. This regulation also provides that the document has effect from the date of issue, and that it ceases to have effect on the date that the person's leave to remain ends. Regulation 15 provides for the contents of the biometric immigration document, which for the purposes of this limited pilot is the same as the current vignette sticker attached inside a passport. The Secretary of State may cancel or require the surrender of a biometric immigration document that she has issued. These powers are set out in Regulations 16 and 17.
	In circumstances where a person is required to apply for a biometric immigration document and fails to comply, Regulation 18 will enable the Secretary of State to refuse to issue a biometric immigration document, to disregard the person's application for leave to remain and to refuse the person's application for leave to remain. This could be, for example, where the person refuses to give his biometrics when required to do so.
	Once a person has complied with a biometric registration requirement his or her application will continue to be considered in line with normal immigration processes. Postal customers will be informed of their immigration decisions by post and those who have successfully applied for a premium same day service will continue to receive a decision on the day of their appointment.
	I am pleased to have brought these regulations before noble Lords today. It is essential that we run the biometric registration pilot to enable a successful introduction of the identity card for foreign nationals later this year. The rollout of identity cards is part of our strategy for tackling illegal migration-associated abuses arising from such activities. I beg to move.

Moved, That the draft regulations laid before the House on 11 March be approved. 14th Report from the Joint Committee on Statutory Instruments.—(Lord West of Spithead.)

Baroness Hanham: My Lords, I thank the Minister for his succinct way of introducing these regulations, which certainly presage the start of identity cards. We will find out in due course whether they will be just for foreign nationals or for everyone in this country. We were of the impression that the enthusiasm for ID cards in general had worn thin, but clearly that is not so in terms of the UK Borders Act and where that came from.
	Before going into the details, I want to ask the Minister about the state of preparedness of any IT system which is to hold this biometric information and the details of everyone recorded on it. The Government do not have a happy record on IT systems. Is this a new system or is it already up and running? Is it on the back of the passport system, which was initially such a disaster and caused much confusion a couple of years ago? Broadly, where are we with the IT system? Is it capable, ultimately, of being expanded to take on all those who are to be included as time goes on?
	It appears that the pilot will effectively last from 28 April to 25 July, with applications from dependents being received only between 16 June to 25 July. Perhaps the Minister can explain this convoluted timetable. I understood him to say—but it is nowhere in the regulations—that these biometric cards will be available or will be used from the end of November. I do not understand the timescale that starts in April. Nor do I quite understand the reason for the original applicant having to make the application so far in advance of his dependents. I should think that one would want it all done together. Presumably, one knows the situation as regards each applicant at the same time.
	Regulation 5 specifically refers, as do others, to a person under the age of 18 who makes an application. I presume that this means someone between the age of 16 and 18. But if so, that is not clear. It needs to be clear in the regulations, because a student could be under 16 years old. Will that be all right? The Minister says that the pilot effectively applies to anyone living in London. No other postcodes are listed. What will be the process whereby an applicant will provide his face and his fingers for photographing and printing when they are making a written application? It seems unlikely that such features will already be recorded and kept. How will they be taken if the application is made by post? Will it mean that whoever makes the application will have to go to a centre to have their biometric details taken? The only place mentioned in the regulations is Croydon. I hope that it is not the Government's intention that all 10,000 applicants should wander out to Croydon to have this matter sorted out.
	This is a three-month trial. What will happen to the information obtained during that trial? I think that the Minister said that the documents will be valid until and unless the person was removed or sent away from this country. Will the Minister confirm that? How likely is it that those who need to make such applications will try to stay outside these time limits to avoid having to supply their photographs and prints? The anticipation is that there will 10,000 applications, but if people know that this is a pilot and that they can delay their application, the chances are that they may try to do so.
	Is there a timetable for a further rollout? What group is it anticipated will be next? We have the various tiers under the new immigration rules. Will it start at tier 4, for example, or will there be a differential on how these applications are made? I anticipate that this will be the first of many such regulations, so it would be helpful to know the order.
	I cannot say that I am content with the regulations. I do not think that any of us is clear that this biometric information will make us much safer and secure, but the regulations are there and we must cope with them as best we can.

Lord Roberts of Llandudno: My Lords, as the Minister stated, the pilot will affect anyone who applies for leave to remain in the UK and falls into one of the categories in Regulation 4; namely, students, prospective students, student nurses, people who want to re-sit an examination or to write up a thesis, sabbatical officers, spouses or civil partners and the unmarried or same-sex partner of someone already present and settled in the UK. We on these Benches are concerned about the new immigration regulations, which restrict so many people from outside the EU, particularly those from African states who need to be trained here to learn skills to take back to their native lands. Because of the qualifications required, these people now will not be allowed into the UK. We must look again at that.
	There are expected to be 10,000 applications in the first three months of this pilot scheme. We had pilot schemes in three areas for asylum and immigration applicants under that Act. If I remember rightly, there were pilots in east London, Greater Manchester and the East Midlands, and they were withdrawn. Pilot areas can be looked at and one can say, "Gosh, this is not working, so we will withdraw the scheme". But this pilot is merely the thin end of the wedge. As this is to be applied throughout the UK, it is not a pilot; it is just the first stage. It is also the first stage of the implementation of identity cards, which the Liberal Democrats have opposed from the start.
	We know exactly what is happening here. The Government have created 69 passport personal interview offices for the 600,000 people a year who apply for a passport for the first time to undergo a personal interview. We are told that 73,000 interviews have been held so far—no doubt the Minister will put me right if I have given the wrong figure—and not one applicant has been refused. So I would ask whether this is really fulfilling the need that was originally envisaged. The 69 personal interview offices took a long time to open, but in some 30 areas there is a remote facility. A council office or other building is taken over and the interview is conducted with a video link. Is this the beginning of setting up a framework for identity cards as well as passports? If so, how will you take someone's fingerprints or iris scan by video? The time will come when we have to say, "Gosh, this isn't working". The noble Baroness asked about people who apply by post. How will their fingerprints be recorded? We can see many problems here. I do not see how biometrics can possibly stop illegal working because foreign nationals and later on everybody with ID cards will be here legally. People holding passports or identity cards can be admitted legally, so how will that help in the battle against terrorism or against those coming to the UK without good intentions?
	I do not want to take too much time, but I want to ask about the initial cost of this scheme. About six months ago I asked about the cost of the 69 passport personal interview offices. The answer from the Home Office was that they would cost £69 million to set up, or £1 million per office. It is a very costly scheme. So I ask the Minister how much this particular scheme is going to cost and, as has already been mentioned, how safe and reliable will the information to be gathered be? Will a disk get lost somewhere? Will there be sufficient security to ensure that people's information remains totally confidential? I would be grateful if the Minister could respond to these questions.

Lord West of Spithead: My Lords, I thank both noble Lords for their input. As is often the case with dinner time debates, a small number of noble Lords are present. However, the points raised are pertinent and I thank both noble Lords. The noble Baroness, Lady Hanham, suggested that perhaps we are not that keen on ID cards any more. I have to say that I do not agree. There is still a very good case for ID cards. While I would not introduce them solely on the basis of counterterrorism, even though people say that they are useful in that context, there are much broader reasons for them. I still believe that on balance it is a good thing to take this route.
	As regards the preparedness of the IT system, I can tell the noble Baroness that the system will be based on one that is already in place. It will not be based on the passport system and the noble Baroness was right to say that there were some problems with it initially. This type of system is already being used overseas in biometric visa processes. I believe that we have taken 1.6 million of these since 2002, so we are fairly content with the IT system and believe that it will work under pressure.
	I have to agree with the noble Baroness that the timing seems to be rather confusing. Basically, we start the pilot on 28 April for single people aged 18 and over without dependants. On 25 June, we allow those with dependants to become involved in the pilot. The postal element will be complete by 25 July. However, people will continue to go to Croydon to go through the process right up until the full introduction of cards. At that point we will move into the production of cards. It is quite confusing, but that is the breakdown.
	On the age of applicants, this applies to all applicants under the age of 18 who need to apply for leave to remain and therefore to all children. The point about the age of 16 applies only, I believe, when applicants have to be accompanied to have their fingerprints taken.
	The trial will test the processes and the technology. On how written applications are to be made, those who write in will have to attend a biometric event in Croydon at some stage. Initially this is for those in the London postal areas. That is the position as I understand it, but if I am wrong I will write to the noble Baroness. On the point made by the noble Lord, Lord Roberts, there are a number of centres around the UK and the processes and technologies being introduced in Croydon will in future be available in all those centres. People will then be able to attend the centre closest to where they are located.

Baroness Hanham: My Lords, I want to ask a little more about going to Croydon and postal applications. What the regulations do not say is that everyone making an application will have to go to Croydon to have their fingerprints taken and their face photographed. There is a sort of airy-fairy view here that someone will be able to apply by post and everything will be in place, but presumably so few biometric details are being held anywhere that everyone will have to trudge out to Croydon. I hope that that will be made clear in the application documents, because it certainly is not clear in the regulations.

Lord West of Spithead: My Lords, I will make sure that it is made clear. Those whose fingerprint data are already being held because their fingerprints have been taken abroad will not have to go to Croydon. However, I will come back to the noble Baroness in writing on the point.

Lord Higgins: My Lords, I apologise profusely for coming in at the last minute, but I had not realised that this debate was taking place in the dinner hour. I want to put one important point to the Minister. A few weeks ago, I entered the United States and was duly fingerprinted. To my surprise, the official told me that my fingerprints were not the same as they were the last time I came in. I was then interrogated while an enormous queue of people with queries formed. What is the probability of having the wrong fingerprints in an immigration investigation?

Lord West of Spithead: My Lords, I do not know about the particular case, but my understanding is that fingerprints are unique and therefore I am rather taken aback by that account. It sounds as if there was a problem in how the noble Lord's fingerprints were checked off against his name. I do not know the details, of course, but fingerprints are unique and I have no doubt whatsoever that applying biometrics means that you have a unique record that goes with the name of a person. That, I believe, is extremely valuable.

Lord Higgins: My Lords, I am sure that what the noble Lord just said is right—that fingerprints are unique—but if the system for registering them is defective the whole system falls to the ground.

Lord West of Spithead: My Lords, the noble Lord is absolutely right. I hope that our technology check-through and processes will ensure that that sort of error will not be made in our system. I see no reason why we should have such an error. The fact that we have biometrics tied to a name is extremely valuable in a whole raft of areas to ensure that we have the right people—people who are entitled to be here, who are not making other claims or claiming benefits to which they are not entitled. I am sure that that is extremely valuable. The noble Lord's point is absolutely valid and I am sure that all noble Lords would agree that we must have a system that does not make such errors.
	The rollout strategy was published on 6 March and launched by the Home Secretary. It includes all the details in order of rollout. I will not go through all the details, but it starts with students in November 2008 and goes up to 2014 when about 90 per cent of people will be covered by the information.
	The noble Baroness asked what will happen if people avoid the process and delay an application. We will be monitoring that to check for displacement. One of the points of the pilot is to see what impact that will have and how we might account for it in the future. That is a very good point. In the course of this, we hope that we will resolve how the problem affects us.
	The noble Lord, Lord Roberts, asked about the problem of excluding students who come to this country. I can assure him that the Government see that as a very important issue. The numbers of people coming here are of great value to the global economy, as they are for our country. This is not to try to squeeze that and stop it; it is to ensure that we have only those people who are eligible to attend—those people whom we really want here—that people are not making multiple claims for benefits and that people are not trying to get other people in. The process would clarify those things; it is absolutely not to try to reduce the number of people who come here to our very good training and education institutions to do their various courses. We certainly are not trying to do that.
	I am not aware of the number of personal interviews for passports. The noble Lord mentioned the figure of 73,000. Perhaps I may come back to him in writing on that as I am not clear on the exact figure. I would argue that the reason none has been refused is that, if you are a dodgy applicant, you would be wary of going along to an interview because you would be put through a process of being interviewed. It would be a stupid thing to do because you would be bowled out and you would be in a difficult position. That has been the impact. I would say that the process cuts out what I would call the dodgy applicants.
	I have already touched on the offices and technology. This is the start of building up an office network. The applicants have to attend in person. Special arrangements can, if necessary, be made on a case-by-case basis to get people somewhere that might be more suitable to them. I do not have to hand the number of offices that there will be. Again, perhaps I can come back on that, but various centres around the UK will have all this technology. We are trying it at Croydon because the technology is currently there, we have people who are experts in it and we will be able to check this through on the pilot study. That will then transfer to the other places in November when we start issuing the documentation.

Lord Roberts of Llandudno: My Lords, I ask one question. The Isle of Skye, the Isle of Anglesey, which I know much better than the Isle of Skye, and north Pembrokeshire, for example, are remote areas. People there will not initially be called on to give their fingerprints. They will be able to take their photographs with a good video connection. Does that mean that the people of the rural areas will not be under such an obligation as people in say, Edinburgh, Glasgow, Aberdeen or even Llandudno—the people in the places where they have these offices? Will there be two tiers of people? The noble Lord will get my point, I am sure—I am talking about people in the remote areas where this is a remote facility and those in the cities where it is a face-to-face facility.

Lord West of Spithead: My Lords, I can be precise and say that that will not be the case. One rule will govern everyone. That is why I mentioned doing this case by case and getting people to a place where they will have their fingerprinting done. The aim is to have a single type of procedure that applies over the whole country to ensure that we have these biometric data.
	The Box has corrected me on an issue that I got slightly wrong. Everyone will have to come in to check their fingerprints again, even if we have seen them before, as we need to reverify. I said that, if we had their fingerprints, we would be able to work on that, but they will have to come in and have them rechecked and reverified to ensure that identities have not been swapped, as was mentioned earlier.
	The last assessment on the cost of the scheme was in November 2007 when, at 2007-08 prices, it was assessed to be £182 million from October 2007 to October 2017. This is being updated in the next ID card cost report, which I think comes out in June. The new figures will say what the cost is. I do not know whether there has been much change in that, but that is the rough figure. People involved in the pilot scheme will not have to pay anything. However, the total costs overall were estimated to be about £182 million for that 10-year period. As I said, the updated cost will come out in June this year.
	As regards the safeguards to protect personal information—this has been raised a number of times in the House—there is no doubt that there have been some terrible slips. However, people are clear about how they should look after data. There are strict guidelines. We have to make absolutely certain that those guidelines are enforced and that people are more aware of them. I am afraid that in this modern day and age there is a need for keeping large amounts of data and centralising them. That enables things to work better and more efficiently and it helps to save costs. One sees it in big firms and corporations, but we all have to get much better at looking after those data, whether they are our own personal data or data on the grand scale.
	There is no doubt that there are problems. Some of the personal information will be encrypted to make sure that it cannot be got at. There will be legal safeguards regarding how personal information is stored within the UKBA. There are instructions on how to comply with the Data Protection Act 1998 and there are issues to do with the Human Rights Act. We have looked very closely at this. Staff are already subject to security vetting. Access to the IT databases, including the UKBA database, is set so that staff have it only when they are required to do so to undertake their work.
	We are making sure that all the right mechanisms are in place. I do not want to underestimate how important this is. One has to keep working at it to get it right because it is absolutely crucial. As I say, I am afraid that in this modern world of ours we need to have these data that enable us to bowl out crime and to pick up people who should not be here and criminals. It is interesting to note that the pilot scheme that we ran for the borders measure enabled us to pick up something in the region of 1,500 criminals, a number of whom were guilty of very serious crimes. We did so by having PNR data, being able to look at them, match them and bowl these things out. I said that the update on the cost would be given in June. I apologise; in fact, an updated cost figure will be given on 8 May.
	In summary, I hope that I have answered most of the questions. If not, I shall come back to noble Lords. This is an integral part of enabling a successful rollout of identity cards for foreign nationals. The pilot scheme is extremely important because we do not want things happening such as occurred at Terminal 5. It is absolutely essential that we do run-throughs and make sure that we get these things right. It is part of our effort to improve the security of our borders and part of our wider national identity scheme. The pilot will help us to improve the technology and the processes involved when requiring foreign nationals to attend biometric registration. It will speed all that up and will assist with the main rollout from November 2008 when we start, as I say, to issue identity cards as the biometric immigration document issued under the UK Borders Act. We are determined to secure the UK borders. Identity cards for foreign nationals are a crucial step in fighting illegal immigration, in enabling those who are here legally to prove their identity, which helps them, and in preventing those who are here illegally from benefiting from all the privileges that they get from living in this wonderful country of ours. As such, I commend these regulations to the House.

On Question, Motion agreed to.

Lord Tunnicliffe: My Lords, I beg to move that the House do now adjourn during pleasure until 8.42 pm.

Moved accordingly, and, on Question, Motion agreed to.
	[TheSitting was suspended from 8.20 to 8.42 pm.]

Criminal Justice and Immigration Bill

Further consideration of amendments on Report resumed.
	Clause 61 [Compensation for miscarriages of justice]:

Lord Thomas of Gresford: moved Amendment No. 86A:
	Clause 61, page 45, line 3, leave out "2" and insert "6"

Lord Thomas of Gresford: My Lords, the purpose of my amendments is to highlight the Government's proposals for limiting compensation to those who have suffered a miscarriage of justice. When the provision in the Bill for Clause 61 was first announced, it was suggested that this would bring it in line with the compensation for the victims of crimes of violence. I declare a remote interest as a former member of the Criminal Injuries Compensation Board under the original scheme. The ethos of the compensation for the victims of criminal injuries is that the person who causes the injuries generally is in no position to pay any damages. If he is in a position to pay, if the perpetrator can compensate the victim in a civil action, there is absolutely no limit to the amount of damages that he can recover, and he would recover damages in the ordinary way, assessed on the basis of the injuries to himself, the loss of earnings, and so on. But a policy decision was made some time ago, with the support of all parties, that since victims of criminal acts cannot recover compensation in the overwhelming generality of cases, the state should step in and provide a scheme to give them compensation.
	As originally envisaged, that scheme was based on common law damages and a person who was the subject of an assault or more serious injury was entitled to recover damages assessed in the ordinary way. In 1992, a decision was taken to take that provision away and to have a statutory scheme which had a tariff attached to it: so much for a finger, so much for a leg, so much for this, that or the other. At that point I resigned from the board because I thought that that was an unfair scheme and a derogation of principle to depart from awarding a person ordinary common law damages. Notwithstanding my resignation, that scheme has continued since that time and over the years it has become subject to a limitation, the upper limit being £500,000.
	The victims of miscarriages of justice are in a totally different position. The potential defendant in such a case is not a criminal who has caused injury so the state steps in, as a matter of social welfare, to assist the victim and the state has to carry the responsibility for the miscarriage of justice. In my experience, those miscarriages of justice can come from a variety of situations. They can arise because of perjured evidence by witnesses of fact but more often they are discovered as a result of failings in the forensic service or a failure by the prosecution to disclose things. A variety of issues can arise on appeal which results in a person being acquitted and becoming a recognised victim of a miscarriage of justice. The only body that could carry responsibility for that is the body that has imprisoned him, the body that has been responsible for a system of criminal justice which has broken down. Hence, where there is a compensation scheme for a victim of a miscarriage of justice, the victim recovers from the only body that can be held responsible for his imprisonment.
	The Government are now introducing a cap on damages—on compensation—originally to make it equivalent to the compensation for victims of crimes of violence. That simply confuses two separate reasons for the state granting compensation. In some ways, the victim of a miscarriage of justice is in a worse position than someone who has received a physical injury, short of death, because when the person who has been locked up is eventually released by the Court of Appeal, what do they go back to? Generally, he or she is homeless and has lost his or her family; generally, the job has gone. In addition to all of that, during that period of imprisonment they may have suffered enormous psychological damage and, in many cases, psychiatric illness arising out of it.
	It is not possible that there should be a limit where one could say, "It has to be under £500,000" when, over a period of years, just the provision of a home or a job would bring someone swiftly up to that level of money. Accordingly, our amendments would, first, extend the proposed limitation of two years to six for bringing a claim from the date that the miscarriage of justice is discovered, which brings it in line with most civil claims. Secondly, they would remove the cap on compensation—where, admittedly, as your Lordships can see, the Government are prepared to raise the limit to £1 million by their own amendment. However, often that too can be exceeded.
	Our third objective is to remove from the Bill the limitation on loss of earnings. Under the Bill, a person who has been imprisoned for many years is entitled only to one-and-a-half times the average national wage by way of compensation for loss of earnings. It does not matter how high-flying he may have been in his profession or occupation, or what sort of opportunities for promotion he has missed, and so on; the claim is to be limited in that way. We submit that that is grossly unfair. We believe that with the scheme for compensating people, as originally envisaged and administered by the noble Lord, Lord Brennan, who, with all of his skilled expertise in personal injury cases has done a great deal for people who have been the victims of miscarriages of justice, there should be a maintenance of the present position.
	Another matter causing concern about compensation is that your Lordships' House decided that the scheme is such that someone must have the cost of board and lodging over their period of imprisonment deducted from their compensation by the state. It is, I respectfully suggest, an insult to have to pay for the period of imprisonment under what is to be recognised as a miscarriage of justice. That is a mean provision. It cannot come from principle, but only from a desire to save money. It comes directly from the Treasury; we oppose it absolutely wholeheartedly, and I hope that your Lordships will agree with what I have said.

Lord Bach: My Lords, before I turn to the government amendments in this group, I hope that it will assist the House if I attempt to respond to Amendment No. 86B, moved with great expertise by the noble Lord, Lord Thomas of Gresford. By that, I mean that he has great expertise in this field, which goes back many years, and I pay tribute to it.
	Amendment No. 86B would remove the proposed £500,000 maximum compensation payment. The proposal in the Bill as it stands is to cap compensation at £500,000 following a miscarriage of justice. This would mean that maximum compensation paid by the state was the same as that paid to victims of crime under the criminal injuries compensation scheme. Of course we accept that the circumstances of victims of miscarriages of justice and victims of crime are different. That is also true of one victim of crime from another victim of crime or one victim of a miscarriage of justice from another victim of a miscarriage of justice. They are broadly analogous in that the impact on victims' lives in terms of the damage and hardship suffered, whether physical, mental or both, can be devastating.
	At the moment the difference in the compensation awarded can be stark. A victim of violent crime can receive a maximum of £500,000 from the Government no matter what the extent of the injuries suffered and a victim of a miscarriage of justice can receive unlimited compensation even in circumstances when they have spent little or no time in custody. The average state compensation paid to a victim of crime under what is generally considered one of the most generous victims' compensation schemes in the world is £5,500. The average paid to a victim of a miscarriage of justice is about £250,000.

Lord Thomas of Gresford: My Lords, if the noble Lord is going to use that statistic, does he agree that claims on the compensation board amount to hundreds of thousands a year and that claims of victims who have suffered a miscarriage of justice amount to a handful of people—perhaps 30 a year?

Lord Bach: My Lord, there is certainly a difference and of course I accept that. I understand that the average compensation paid goes a little way towards making the point I tried to make, but as it is an average it does not speak about every case.
	It has been argued—it was hinted at tonight—that miscarriages of justice are always the fault of the state. It is for the state to compensate but it is not always the fault of the state, although it is at fault on occasion. Sometimes a complainant makes false allegations and is believed by both the prosecution and the jury. We all know of that having happened. Sometimes new techniques—DNA is the best example—are developed that provide better and clearer evidence. There are cases where no blame at all can be attached to the prosecuting authorities for a conviction that is rightly quashed. In reality, in all cases whether or not the state is to blame, it has to pay the compensation. The same reality means that the state is responsible for compensating victims of crime as the people who commit offences are often what used to be described as men of straw in that they have no financial backing.
	Such responsibility is right in a civilised country. There is nothing to stop someone seeking redress through the civil courts following a miscarriage of justice for, say, malicious prosecution, in the same way that a victim of crime can bring civil proceedings against the person who harmed him. I recognise that such a course, particularly an accusation of malicious prosecution, has many difficulties if one is to prove it. That is why we attempted to explain in Committee that the requirements for making an application for compensation under the miscarriage scheme operated by my right honourable friend the Lord Chancellor are much less onerous than making a civil claim through the courts, and rightly so.
	For those reasons it is appropriate that compensation should be capped, but we acknowledge that some refinement of the £500,000 limit provided for in the Bill would be sensible. Government Amendment No. 86C in this group would increase the maximum payable from the current £500,000 in all circumstances to the same amount where the applicant has spent less than 10 years in relevant detention, and up to £1 million where the applicant has spent 10 years or more in relevant detention. This enables very substantial compensation to be made to applicants, but recognises the principle that compensation should not be unlimited, and that applicants do not have to prove their case in the same way that they would in a civil court.
	I accept that the amendment would mean that there is no longer a straight read-across to compensation paid to victims of crime, where the limit is £500,000. It would none the less keep a link for most cases, while recognising that where, as a result of a miscarriage of justice, an applicant has spent as long as 10 years or more in prison, more compensation could be paid. Government Amendment No. 86E would enable both the £500,000 and £1 million limits to be altered by affirmative resolution of both Houses. Government Amendment No. 86F sets out in some detail the types and periods of detention that would be counted when calculating which caps should apply. Government Amendment No. 86G would ensure that the provision inserted by Amendment No. 86F extends to Northern Ireland. Finally, Amendments Nos. 115C, 115D and 115E make similar provision for compensation for miscarriages of justice in the Armed Forces.
	I turn to Amendment No. 86D in the name of the noble Lord, Lord Thomas of Gresford. This seeks to remove the cap on how much can be paid for lost earnings in any one year when the assessor is making an assessment. The pecuniary loss element of miscarriages of justice compensation awards is intended to compensate for such things as loss of earnings, loss of future earning capacity, loss of opportunity and loss of pension contributions. Its purpose until now has been, as far as it has been possible, to put the applicant back into the financial position that they would have been in but for the miscarriage of justice. Increasingly, applicants have submitted hugely complex and speculative claims. The assessor is left with the difficult task of determining the financial position an applicant would have been in had the miscarriage of justice not occurred, as against the position they thought, or even hoped they might have been in. Consequently, claims can, not unusually, take years—not months—to sort out. On average, it takes three and a half years and, in several cases, over 10 years. Of course, they also cost a very large amount of money. I have evidence of a forensic accountant's bill for £400,000. I am not saying that it related to a question of compensation for loss of earnings, but it is an example of how large these bills can be and what a long time they take to work out.
	It is in everyone's interest for these cases to be finalised as quickly as possible. This will be facilitated by a cap on the amount of compensation that can be awarded for any year's lost earnings because it is likely that less evidence of loss will be required and will be easier to provide. Indeed, swifter resolutions will, perhaps, help some applicants to draw a line under what, in every case, is an unfortunate experience, to put it mildly, if they have been the victims of a miscarriage of justice, and to move on with their lives. The proposed limit is one and a half times the median gross annual earnings as published by the Office for National Statistics. Again, this is in line with what applies under the Criminal Injuries Compensation Scheme and will bring about a better balance with compensation paid to victims under that scheme.
	Finally, Amendment No. 86A in this group would extend the proposed time limit for making a claim for compensation in relation to a miscarriage of justice from two to six years. Our proposed limit of two years for making an application is the same as that for making an application for criminal injuries compensation. We do not accept that it should be increased to six years, in line with that for bringing many—but, of course, not all—types of civil action. All that is required to make an application for compensation is the completion of a relatively simple form, giving the factual details of the case or, indeed, simply writing a letter setting out the circumstances. There is no equivalent burden of proof to be met or substantial argument to be presented.
	In the vast majority of cases, two years from the date of the quashing of the conviction or the date of the retrial should be sufficient time to make such an application. We have of course made provision for an application made after the two-year period to be accepted in exceptional circumstances. Someone being incapacitated for a large part of the two-year period might well be regarded as an exceptional circumstance.
	I am sorry that we disagree with the noble Lord on the principle of capping payments for miscarriages of justice. We think, for the reasons I have attempted to state, that we are right about it. I hope that the concession—if that is the right word—that we have made in raising the amount for those who have suffered the longest miscarriages of justice slightly assuages the noble Lord when he hears our arguments. We have moved some way in his direction, and I hope that he feels able to withdraw his amendment.

Lord Thomas of Gresford: My Lords, many of the arguments in the Minister's response indicate how blinkered the Government are in still equating compensation for criminal injuries with compensation for miscarriages of justice. I will not repeat what I said but, for example, justifying the £500,000 cap proposed in the Bill because that is what victims of criminal injuries get, and the sum that is one and a half times the average wage because that is what they get, indicates how the Government have failed to grasp the essential difference. At some point, this will come back to haunt them. Having been party to a generous scheme of compensation in the sense that people are put back, after they have been released from prison, to the position in which they would otherwise have been, in so far as money can do that, and then abandoned that principle for no other reason than to save money—we have not heard anything on principle from them at all—the Government will be haunted by this for a long time.
	At this time of night, I do not propose to push this matter to a vote on this occasion. However, in subsequent months and years, we will come back to this issue time and again—especially when the press get hold of a particularly vicious miscarriage of justice which illustrates my points. I did not say that the Government or the prosecutor are necessarily to blame; there are cases, which I referred to in my opening remarks, where perjured witnesses have led to a miscarriage of justice. However, the state is responsible for the criminal justice system. When it is in the dock, it should pay. I have exhausted your Lordships' patience long enough on this topic, and beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 86B not moved.]

Lord Bach: moved Amendment No. 86C:
	Clause 61, page 46, line 14, leave out "£500,000" and insert—
	"(a) £1 million in a case to which section 133B applies, and(b) £500,000 in any other case."
	On Question, amendment agreed to.
	[Amendment No. 86D not moved.]

Lord Bach: moved Amendments Nos. 86E to 86G:
	Clause 61, page 46, line 22, leave out first "the" and insert "any"
	Clause 61, page 46, line 27, at end insert—
	"133B Cases where person has been detained for at least 10 years
	(1) For the purposes of section 133A(5) this section applies to any case where the person concerned ("P") has been in qualifying detention for a period (or total period) of at least 10 years by the time when—
	(a) the conviction is reversed, or(b) the pardon is given,as mentioned in section 133(1).
	(2) P was "in qualifying detention" at any time when P was detained in a prison, a hospital or at any other place, if P was so detained—
	(a) by virtue of a sentence passed in respect of the relevant offence,(b) under mental health legislation by reason of P's conviction of that offence (disregarding any conditions other than the fact of the conviction that had to be fulfilled in order for P to be so detained), or(c) as a result of P's having been remanded in custody in connection with the relevant offence or with any other offence the charge for which was founded on the same facts or evidence as that for the relevant offence.
	(3) In calculating the period (or total period) during which P has been in qualifying detention as mentioned in subsection (1), no account is to be taken of any period of time during which P was both—
	(a) in qualifying detention, and(b) in excluded concurrent detention.
	(4) P was "in excluded concurrent detention" at any time when P was detained in a prison, a hospital or at any other place, if P was so detained—
	(a) during the term of a sentence passed in respect of an offence other than the relevant offence,(b) under mental health legislation by reason of P's conviction of any such other offence (disregarding any conditions other than the fact of the conviction that had to be fulfilled in order for P to be so detained), or(c) as a result of P's having been remanded in custody in connection with an offence for which P was subsequently convicted other than—(i) the relevant offence, or (ii) any other offence the charge for which was founded on the same facts or evidence as that for the relevant offence.
	(5) But P was not "in excluded concurrent detention" at any time by virtue of subsection (4)(a), (b) or (c) if P's conviction of the other offence mentioned in that provision was quashed on appeal, or a pardon was given in respect of it.
	(6) In this section—
	"mental health legislation" means—
	(a) Part 3 of the Mental Health Act 1983,(b) Part 3 of the Mental Health (Northern Ireland) Order 1986, or(c) the provisions of any earlier enactment corresponding to Part 3 of that Act or Part 3 of that Order;
	"the relevant offence" means the offence in respect of which the conviction is quashed or the pardon is given (but see subsection (7));
	"remanded in custody" is to be read in accordance with subsections (8) and (9);
	"reversed" has the same meaning as in section 133 of this Act.
	(7) If, as a result of the miscarriage of justice—
	(a) two or more convictions are reversed, or(b) a pardon is given in respect of two or more offences,"the relevant offence" means any of the offences concerned.
	(8) In relation to England and Wales, "remanded in custody" has the meaning given by section 242(2) of the Criminal Justice Act 2003, but that subsection applies for the purposes of this section as if any reference there to a provision of the Mental Health Act 1983 included a reference to any corresponding provision of any earlier enactment.
	(9) In relation to Northern Ireland, "remanded in custody" means—
	(a) remanded in or committed to custody by an order of a court, or(b) remanded, admitted or removed to hospital under Article 42, 43, 45 or 54 of the Mental Health (Northern Ireland) Order 1986 or under any corresponding provision of any earlier enactment.""
	Clause 61, page 46, line 29, leave out from "Wales)" to end of line 30 and insert "for "section 133" substitute "sections 133 to 133B"."
	On Question, amendments agreed to.

Lord Thomas of Gresford: moved Amendment No. 86H:
	After Clause 62, insert the following new Clause—
	"Withdrawal of warrants
	After section 11 of the Magistrates' Courts Act 1980 (c. 43) (non-appearance of accused: general provisions) insert—
	"11A Non-appearance of accused: withdrawal of warrants
	(1) Where a magistrates' court has proceeded in the absence of the accused and the court has imposed a fine following conviction, any warrant to enforce the fine or other financial penalty may be suspended or withdrawn and the matter returned to the court which convicted the offender.
	(2) The Secretary of State shall make regulations enabling—
	(a) a court,(b) Her Majesty's Court service, or(c) any person employed to enforce a warrant against a convicted person,
	to suspend or withdraw the warrant and return the matter to the court which convicted the offender.
	(3) Regulations made under subsection (2) shall specify the steps to be taken in a case where following conviction it is discovered that the offender is a vulnerable person.
	(4) In subsection (3), "vulnerable person" means a person who could not reasonably be expected to act on his own behalf including, but not limited, to—
	(a) children under 18 years of age;(b) the elderly;(c) persons with a disability;(d) the seriously ill;(e) the recently bereaved;(f) single parents;(g) pregnant women;(h) unemployed persons;(i) persons who have obvious difficulty in understanding, speaking or reading English.""

Lord Thomas of Gresford: My Lords, the amendment inserts a new clause which would permit the withdrawal of warrants in a case where a magistrates' court has proceeded in the absence of the accused and imposed a fine which is then enforced by means of a warrant. The noble Lord, Lord Lucas, has a great interest in this matter. Noble Lords are looking round, but he cannot be here and therefore I am putting forward the amendment with his consent.
	Following our discussions in Committee, the noble Lord, Lord Lucas, and the Z2K Trust had meetings with the Minister and they made some progress, but two major points are outstanding: first, while defaulters or their representatives can ask for the cases to be reheard by the magistrates' court, the Government have said nothing about the fines officer or the bailiff referring back to the courts the case of vulnerable people who have been fined disproportionately in their absence. Noble Lords may remember that in Committee we made the point that if a person does not know that he has been summoned to court and does not know that a fine has been imposed it may be that the first he knows of these proceedings is when the bailiff knocks on the door. The purpose of the provisions in the amendment is that at that point the bailiff should be able to consider the position of the people with whom he is dealing, not simply to exercise his powers but to take a decision as to whether in all fairness and justice this matter will be referred back to the magistrates' court.
	Secondly, many of your Lordships who have experience as magistrates know that in imposing a fine it is necessary to have regards to the means of the offender. The court in the absence of the defendant and without any notification to him may be unaware of the financial circumstances of the person concerned. Fines officers and bailiffs need to be under a positive duty to report back to the magistrates' court cases of vulnerability or disproportionate fines in relation to means for the magistrates to reconsider. That is not terribly difficult. Generally speaking, bailiffs do not exercise their powers immediately but take time; they warn the person concerned and then go back. In the period before finally enforcing the order the bailiff has ample time to consider the person concerned and whether the case should be reported back.
	The noble Lord, Lord Lucas, tells me that he found the expectations far too high in the Ministry of Justice about the capacity and knowledge of the relevant procedures among vulnerable people. For example, as the noble Lord, Lord Lucas, and Mr Paul Nicholson of the trust pointed out to me, 7 million adults in the United Kingdom have a reading age of 11. For such issues there is no legal aid. Many people subject to such procedures are functionally handicapped when it comes to using legal processes. They are incapable of understanding the appeal and complaints system and will be unable to apply for a rehearing or to bring a complaint unless assisted by lawyers or specialist advisers. It is always open to a bailiff to discourage the person to whom he is speaking to take the matter further. Bailiffs are concerned with their commission.
	The amendments that we have tabled deal with those problems. I invite your Lordships' attention to them. I have already referred to subsection (1), where the financial penalty may be suspended or withdrawn.
	Subsection (2) provides that the Secretary of State should make regulations that will enable a bailiff to suspend or withdraw the warrant and return the matter to the court. Subsection (3) provides that:
	"Regulations ... shall specify the steps to be taken in a case where following conviction it is discovered that the offender is a vulnerable person".
	Subsection (4) defines that vulnerable person as,
	"children under 18 years of age ... the elderly ... persons with a disability ... the seriously ill ... the recently bereaved",
	and so on.
	We have to have a system for the enforcement of fines which is humane and just. I beg to move the amendment in that context.

Lord Bach: My Lords, of course we accept that vulnerable people may have difficulty in dealing with some issues. However, we cannot accept the new clause—although we are grateful to the noble Lord, Lord Thomas of Gresford, for raising this matter again—because powers are already available to ensure that warrants outstanding against vulnerable people may be referred back to the courts. These powers are already used. That is not to say that we ought to have a system that simply allows a person routinely to stop a process after they have committed an offence, ignored a summons, failed to appear at court, or failed to respond to repeated correspondence from the court; but even at the latest possible stage, when a bailiff is engaged, there is and ought to be a process whereby the matter can be halted in the case of a vulnerable person.
	The new clause provides that where an offender has been convicted in absence and fined, a warrant to enforce the fine or other financial penalty may be suspended or withdrawn. Regulations may provide that those who may suspend or withdraw the warrant may include a court, a member of Her Majesty's Courts Service, or any person employed in enforcing the warrant. The regulations under the new clause would also have to set out the steps to be taken when a person is deemed vulnerable. Finally, the new clause attempts to define a vulnerable person for the purposes of this power.
	As the noble Lord, Lord Thomas of Gresford, told the House, following the withdrawal of this amendment in Committee on 3 March my noble friend Lord Hunt and I had a useful meeting with the noble Lord, Lord Lucas. I believed that we reached agreement on the extent of the current powers to deal with the withdrawal of distress warrants. That meeting was also attended by representatives of the Zacchaeus 2000 Trust, which does such valuable work in assisting vulnerable people.
	At that meeting, my noble friend gave an undertaking that our officials will develop guidance for the courts which will clarify their powers to withdraw such a warrant. He also agreed that officials will consult with the trust as well as with other key stakeholders, such as, of course, the Magistrates' Association and the Justices' Clerks' Society. My noble friend followed up that meeting with a letter to the noble Lord, Lord Lucas. The Reverend Paul Nicolson of the trust kindly copied my officials into a response to my noble friend's letter, indicating that he thought some points had not been answered. These are the ones that the noble Lord has quite properly raised tonight. The first concerns the fines officer.
	Let me deal with the referral back to court by a fines officer or bailiff. I remind the House that under Schedule 5 to the Courts Act 2003 the fines officer has the power to refer a case back before the magistrates' court at any time. For example, the fines officer could do this if they did not have at their disposal suitable delegated powers to deal effectively with the offender. In practice, this power enables a fines officer to return a case to court where it is clear to them that the offender is vulnerable and genuinely unable to pay the fine. The magistrates could consider the powers which they have at their disposal, which include the power to remit or reduce the level of the fine as they feel appropriate.
	Bailiffs, too, should refer the matter to court if they come across someone who they consider genuinely vulnerable. There is concern that the National Standards for Enforcement Agents—which is only guidance for bailiffs—is being widely ignored in practice. However, the bailiffs have a contract with Her Majesty's Courts Service and are required by that contract not to take enforcement actions in certain situations. The relevant paragraph is 6.31 of the specification for private enforcement provision. I quote briefly:
	"The Contractor shall not take any action to levy distress without prior reference to the court if the Defaulter: is in hospital or nursing home; appears to suffer from severe physical or any mental disability; is an elderly person who has difficulty dealing with his/her affairs; is suffering long-term sickness, serious or acute illness or frailty, which has resulted in a recent period of hospitalisation or defaulter being housebound and can provide evidence of sickness for the period in default".
	Some noble Lords may say, "Yes, but in practice this means nothing to the vulnerable person with the bailiff knocking at the door". That is not the case, in our view.
	If a person has a complaint about a bailiff, the first thing to do is to complain to the company that the bailiff works for. This is important because the Courts Service contract with bailiffs was recently extended for a further year, until the end of March 2009. There have been some attempts to make the complaints process in respect of bailiffs more robust. If this does not work, an individual can go to the magistrates' court that issued the enforcement order and, as we explained to the noble Lord, Lord Lucas, ask the court to withdraw the distress warrant.
	We acknowledge that bailiffs have a difficult job, but we accept that some do not always do that job as we might like. We are fully committed to the regulation of the bailiff industry. I firmly believe that regulation of the industry will drive up standards by improving training and raising professionalism and behavioural standards where necessary. Part of that improvement will come from improving compliance with the national standards where that is needed. Noble Lords will know that primary legislation in 2007 delivered important enforcement law reforms, including provision for an enhanced certification process for bailiffs ahead of full regulation. The House will also remember the Tribunals, Courts and Enforcement Act 2007. The next step is to develop the underpinning rules and regulations that will bring those reforms into force. A scoping exercise to that end has commenced involving a series of meetings with relevant parties. It is anticipated that this scoping activity will be completed by May of this year.
	Lastly, what about the argument—perhaps the noble Lord's most powerful argument—that some of these people are simply too vulnerable to engage in this process? I stress that those who help to support vulnerable people—and thankfully there are many in our society, both volunteers and relatives, who do—must do all they can to ensure that they do not wait until the bailiff is at the door.
	The key is to contact the fines officer before matters get to that stage. The fines officer can advise offenders, help them to understand what has been ordered by the court and explain the implications of default. They can advise offenders where they can get help managing their finances, where that is needed. Fines officers can help offenders to understand how they can appeal against the decision of the court, or make a complaint about enforcement action taken either by the court or by bailiffs themselves. It is therefore vital that offenders, especially those who could be considered vulnerable, keep in touch with the court. We cannot emphasise strongly enough the need for offenders to use fines officers as a way of keeping in touch with the court and for help with understanding the enforcement process. If they do so it will reduce the number of occasions when the first face-to-face contact which the offender has with the court is through a bailiff on the doorstep attempting to execute a warrant of distress in lieu of payment of a fine. In the light of what I have said and the work that we are doing on this, I hope the noble Lord will withdraw his amendment.

Lord Thomas of Gresford: My Lords, before the Minister sits down, he referred to work in progress and the introduction of a regulatory regime for bailiffs. Can we have some idea of the timetable? When is it likely to be put into effect?

Lord Bach: My Lords, the noble Lord presses me, but I can go no further than to confirm that this important scoping activity is due to be completed by May 2008. I cannot say how much longer after that it will take to have a proper regulatory system. I shall take it away and if I can get more information, I shall write to the noble Lord and place a copy in the Library.

Lord Thomas of Gresford: My Lords, I am grateful to the Minister for his full response. I have no doubt that I shall discuss it with the noble Lord, Lord Lucas, and the Reverend Paul Nicolson to see where we take the matter. In the light of what the Minister said a moment ago, I reserve my position for Third Reading to see what progress may have been made on elucidating these points. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 63 [Possession of extreme pornographic images]:

Baroness Miller of Chilthorne Domer: moved Amendment No. 86J:
	Clause 63, page 47, line 7, leave out "both"

Baroness Miller of Chilthorne Domer: My Lords, with this amendment we move to Part 6 and the clause concerning extreme pornography. The Minister said that we had a series of Second Reading speeches in Committee. There was a good reason for that, as noble Lords felt that important principles were being explored and did not feel that the Government had got this part right. That is not to say that there is not an issue to be addressed—I accept that there is—but the Government have not yet got it right. This group of amendments attempts to get us nearer to getting it right.
	There was clearly some support in Committee for what the Government are trying to do, but we on these Benches, and many other noble Lords on other Benches, parted company with the Government because we felt there were a number of problems which the Government still needed to address. First, the Government have veered far away from the definition in the Obscene Publications Act. One of our wishes is that this part should bring into line what the OPA does for producers of material with an internet age to address the fact that this material can be produced outside the UK.
	The sort of definition we would be looking at would be one that has been tried and tested in the courts under the Obscene Publications Act and that does not confuse the question of whether the material is produced solely or principally for the purpose of sexual arousal with the question of whether it is obscene. As the noble Baroness, Lady Kennedy of The Shaws, reminded us in Committee, juries have great difficulty in dealing with what is likely to deprave and corrupt. Now they will have to contend not only with that question but also with whether the material is produced solely or principally for the purposes of sexual arousal. That has complicated the issue.
	In his reply in Committee, the Minister helpfully said that the Government are seeking after consultation with the police and the CPS to make it illegal to possess material that would normally be liable to prosecution under the OPA. We agree that it is important that the OPA is taken as the starting point because there has subsequently been a vast amount of case law which has moved with the times as society's definition of what is obscene has changed.
	The Minister made it clear in his letter of 27 March that what we in the UK have regarded as obscene ever since 1959 is on the whole in advance of what most other countries have regarded as obscene. He sent us a useful round-up of how some of those other countries have legislated. As he says, the UK is a leader. He also says that it would not be the first time the UK has taken a lead in this area. For that reason in particular, it is very important, if these clauses are to be anywhere near to being up that task, that our amendments should be the very least to which the Government aspire. Our amendments reflect the fact that both in Committee and in his letter the Minister accepts that the OPA is good and satisfactory legislation.
	The decades of case law that have built up to a consensus on what is a very difficult subject reflect societal changes. We have therefore tabled Amendment No. 86L to clarify further that, in criminalising what an internet porn viewer is looking at, it should be the same sort of thing that it would be illegal to print under the OPA—neither more nor less.
	Amendment No. 86K would ensure that the Bill criminalises a possessor of material in which something is taking place that is actually criminal and not merely distasteful, however distasteful that might be. Will the Minister say more about the penalties which this part of the Bill carries and which are now very severe? If someone viewed over the internet a third party having sexual intercourse with a sheep, would that carry a greater penalty than someone actually having sexual intercourse with a sheep? It is important to focus on the effects of what we are talking about here. Should watching something that is clearly illegal, that clearly gives rise to animal welfare issues and that has clearly been legislated for in animal welfare legislation be more criminal and carry greater penalties than the actual act itself?
	In Amendment No. 86M, we have sought to give a far clearer definition of what a sexual offence is. Those offences are quite adequately defined in the Sexual Offences Act 2003, and surely the Government do not want to confuse an already fraught area by having two parallel interpretations of what a sexual offence is.
	I will come back to some of the more fundamental issues when we debate whether these clauses should stand part of the Bill at all, but at this stage, those are the matters that I wish to talk about. Therefore, I beg to move.

Lord McIntosh of Haringey: My Lords, I added my name to these amendments and I am glad to support the noble Baroness, Lady Miller. I spent nearly 20 years on one Front Bench or another, and during that time I never quite had the guts to say what I really thought about these issues. I never quite had the guts to quote Kenneth Tynan, who in a review of eastern erotic art said, "All my life I have enjoyed having erections, and I have been grateful to the people and the works of art that made them possible". Now I have said it, and no one can accuse any political party of having any involvement in that.
	Before I went on to any Front Bench, I was involved in the proceedings on the Video Recordings Bill 1983, which became the Video Recordings Act 1984. Three of us—Douglas Houghton, Hugh Jenkins and I—fought against that Bill all by ourselves and to no real effect. The starting point was that what we do in our homes—the possession of books or images—is no business of the Government or the courts. What we have on our bookshelves is still not their business, but something has encouraged Governments of both persuasions to think that what we may have in terms of video recordings or pornographic images on the internet, or whatever they may be, is the concern of government.
	Of course, if any of those images involves the commission of a crime in their production, an existing law deals with that, which none of us can contest. This is not an argument for child pornography, for bestiality, for snuff movies or anything like that. No one is defending that and there is a perfectly good law to deal with it. Having said that, what does it matter to the Government whether what we have in our homes for our own purposes is for sexual arousal or not? What is wrong with sexual arousal anyway? That is not a matter for Parliament or government to be concerned about. I am opposed in principle to interference in the private lives of adults as long as what they do does not cause harm to anyone else, or arises from or causes any offence under criminal law.
	I have a further objection, which the noble Baroness, Lady Miller, has eloquently brought out. We have had the Obscene Publications Act 1959 for nearly 50 years. In Committee, my noble friend Lady Kennedy said that, yes, there are problems with interpretation, but the courts during that period have successfully dealt with those problems and the wording of the Obscene Publications Act. This part of Part 5 introduces new definitions of obscene or extreme pornography, which cloud the agreement that generally has been reached in this country about what is obscene and what should be allowed. That is extraordinarily unfortunate. It is damaging to the interpretation of the law; to the confidence of people that the law understands the variety of emotions and feelings that there are about sexual matters; and to the reputation of the law itself.
	I have no hesitation in supporting the noble Baroness, Lady Miller, in these amendments. I hope that the Government will go a good deal further than they went in Committee in recognising the validity of her arguments.

Lord Henley: My Lords, the noble Lord, Lord McIntosh, quoted Kenneth Tynan. I do not know whether he saw the interview with Doris Lessing in one of yesterday's newspapers when she talked about an evening she spent with Kenneth Tynan, which ended with some remarks she made about whips. The noble Lord and I have both been Whips, but Kenneth Tynan and Doris Lessing were talking about a different sort of whip. If the noble Lord can find the appropriate newspaper, he might find that interview amusing to read.
	I should like to add to what the noble Lord said, because I am coming at this from a similar angle, even if I do not necessarily arrive at the same conclusion. In Committee, I quoted the famous remark of Mrs Patrick Campbell more than 100 years ago, which I shall now quote properly in full. She said:
	"It doesn't matter what you do in the bedroom as long as you don't do it in the street and frighten the horses".
	I think that most, or all, of us would agree with that. Our only problem is the definition of what frightens horses and what goes slightly too far.
	At this point, I have to say that I am very grateful to the Minister, with whom I have had some discussions. He offered me the chance to look at a number of these films and no doubt the noble Lord will tell us more about that in due course. In what was possibly a cowardly manner, I did not take him up on his offer, and so I have left it to him to look at the films. However, I have read the Bill, which defines an extreme pornographic image as an image that is,
	"(a) pornographic, and
	(b) an extreme image".
	There follows a definition of the word "pornographic" which the noble Lord, Lord McIntosh, described as being something that causes sexual arousal. However, the extreme image is defined in subsection (6) as,
	"(a) an act which threatens or appears to threatens a person's life,
	(b) an act which results or appears to result (or be likely to result) in serious injury to a person's anus, breasts or genitals",
	and so it goes on. At this point it becomes slightly difficult. Having offered what I will call the Mrs Patrick Campbell definition of what we think is the right approach, I then said that I do not know what we define as that which frightens the horses.
	I think that we want to hear more from the Government, and particularly about what the Minister and the Government consider to be extreme images, before we make a decision. As I understand it, the noble Baroness, Lady Miller, has put forward two options. The first option set out in the first group of amendments seeks to amend the Bill, and if that does not work, the second group would strike the whole lot out. As we implied in Committee, we want to hear more from the Government before we come to a view. I do not know whether it is appropriate, but the noble Baroness might want to come back at Third Reading, particularly as the noble Lord has now taken a look at some of the extreme pornographic things that he invited me to see. At that stage, and after hearing what the Minister has to say, the noble Baroness may want to consider these matters again.

The Earl of Onslow: My Lords, are we not facing the terrible problem of definition? Where you have a definition that says that an extreme pornographic image is an image which is,
	"(a) pornographic, and
	(b) an extreme image",
	that is like saying a dog is a dog or a horse is a horse; it gets you absolutely nowhere.
	There is a wonderful museum in Paris, the Musée d'Orsay, which is full of the most beautiful pictures. One of them was commissioned by the Turkish ambassador in around 1860. It is a close-up painting of a lady's genitalia, and I believe it is called the Mother of the World—

Lord Faulkner of Worcester: "L'Origine du Monde".

The Earl of Onslow: I thank the noble Lord. My bet is that the Turkish ambassador commissioned that painting for sexual arousal, and yet there it is, displayed in the Musée d'Orsay. Some Greek vases have pictures of Priapus on them. If Priapus was to do the things he is threatening to do, it is fairly likely, because of the size of what he has got, that they would result in serious injury to a person's bits and pieces.
	We are here in the problem of definition. The noble Lord, Lord McIntosh of Haringey, has said that surely it should be left in people's bedrooms or on the television sets in their bedrooms. Actually, I do not see why someone cannot have a picture of a person having oral sex with a dead animal. It is the most extraordinary thing anyone would want to do, but I cannot see why that should be made criminal. It does not harm the animal because it is dead. The person concerned ought to be carted off in a collar and chain and put in the loony bin, but it does not do anybody any harm. Surely the whole point is that what we are trying to get at is undefinable. You probably know it when you see it, but you cannot define it, and statutes must be defined.
	I have a final little story for your Lordships. Years ago I was asked by the noble Lord, Lord Alli, to introduce a programme on pop music. The programme was in six sections, and one of them was on porn rock. I refused to be in any way nice about it. I said that this has been going on for an awfully long time and I quoted Juvenal's ninth satire, which states,
	"an facile et pronum est agere intra uiscera penem legitimum atque illic hesternae occurrere canae?"
	I would not have dared to quote that had Lord Hailsham still been on the Woolsack. He would have got very angry because it is incredibly obscene, but it is one of Juvenal's ninth satires. All I am trying to say is how difficult these definitions are and how impossibly difficult it is to legislate for. I hope that we take out both these clauses.

Lord Wallace of Tankerness: My Lords, I support the amendment moved by my noble friend Lady Miller. It was supported very robustly and eloquently by the noble Lord, Lord McIntosh of Haringey. There has been concern generally about the existence of these clauses in the Bill. As the noble Earl, Lord Onslow, indicated, there is the problem of definition. It is very unsatisfactory indeed if people are potentially going to be made criminals because they possess certain material. If we are having difficulty over the definition, Heaven help those who might suddenly find themselves at the wrong end of the criminal law because of a lack of understanding as to what the definition is.
	It is with these concerns that we have tabled the amendments in the group. If there is going to be a crime established we want to try to get some definition into it. The amendment would make a requirement that the act being recorded, and which is then the subject of the pornographic image, should be one in which one or more of the persons engaged in that act are committing a sexual offence. "Sexual offence" is defined for the purposes of this clause to include offences which could be committed forth of the United Kingdom. One of the concerns mentioned in Committee was that many of these images are imported from outside the United Kingdom.
	Clearly, if no sexual offence is being committed, it seems very odd indeed that there should be an offence for having an image of something which was not an offence. I can see nothing within the Bill that would stop a person having a picture of himself or herself engaged in that particular activity, which they would know was entirely consensual. Having engaged in it consensually would not be a crime, but to have a photograph of it in one's possession would be a crime. That does not seem to me to make sense.
	Amendment No. 86L, spoken to by my noble friend Lady Miller, which indicates that the definition should be imported from the Obscene Publications Act, again has considerable good sense attached to it. After all, in Committee, the Minister tried to indicate that it was important that the parallel was made with the Obscene Publications Act. Things were said about the difficulties and the challenges we face today because of the internet and because of electronic communication of images, difficulties which were not faced back in 1959. Notwithstanding that, I cannot see any reason for departing from the definition which, as the noble Lord, Lord McIntosh, said, has stood the test of time of some 50 years, and why we would suddenly have a different set of definitions simply because something might be downloaded from the internet.
	Amendment No. 86PA seeks to bring in a defence. The defences in the Bill are very limited indeed. The amendment seeks to create an additional defence whereby a person believes that those involved in the material possessed actually consented to the participation. There may be difficulties in proving that in cases of mass produced pornographic images, but it certainly could be a very useful defence in cases of images of consenting couples or groups which have been made for their own use. It is not open-ended. There is a requirement that the belief must be reasonable. In all these circumstances, the restrictions and the greater definition which the amendments in this group bring forward help to improve the measure. As has been indicated, there is considerable underlying unease about the purpose of the clauses as a whole. I certainly commend the amendments as improving clauses which at the moment do not command sufficient confidence to enable them to become part of our criminal law.

Lord Faulkner of Worcester: My Lords, I, too, expressed reservations about these clauses in Committee and took very much the same line as the noble Baroness, Lady Miller, did on that occasion. I looked carefully at the amendments that my noble friend brought forward and I said in Committee that I thought that they represented an improvement on what was there before.
	I think that I am the only Member of your Lordships' House who took up the invitation of my noble friend to visit Charing Cross police station to view some of what one might call the exhibits that underlie the Government's thinking on this matter. A variety of adjectives comes to mind, such as "bizarre", "unpleasant", "distasteful", even "repulsive", but the images were not in any sense sexually arousing. At the end of the visit, I was left with the question whether their possession is so threatening to society that it is worth turning people into criminals and sending them to jail if they happen to have them on a computer screen at home or have obtained them some other way.
	I suspect that, like me, many noble Lords have had a fair number of submissions on this subject from a variety of organisations. Some of them are very articulate and well argued. The main point that comes through was expressed by an organisation called backlash, which said:
	"The proposals are still, despite the recent amendments, worded in such a way as to risk inadvertently criminalising hundreds of thousands of British citizens".
	It went on to say:
	"Equally importantly, people will be deterred from exploring their sexual preferences for fear that their research may lead them into illegal territory which in turn can cause both distress and mental health issues as well as being a fundamental breach of their human rights".
	The point is also made by a number of these organisations that most of the scenes to which my noble friend introduced me at Charing Cross are not real scenes but are faked for the benefit of their creation or are the product of an entirely consensual activity, as the noble Lord, Lord Wallace, pointed out. I am at one with my noble friend Lord McIntosh and, I suspect, with the Minister in wanting to prosecute illegal activity that has taken place in order to create these images. However, if no illegal activity has taken place and we are concerned about merely the possession of the images, I really cannot imagine that any useful purpose is served by creating criminals out of the people who possess them.
	My worry is that the wording of the Bill is still much too vague and could cover all sorts of light, consensual and safe imagery which many people enjoy and practise and which at present is perfectly legal but which as a consequence of these clauses will certainly become illegal. In Committee, I finished by asking my noble friend a question. I did not get an answer on that occasion and I therefore put the same question to him now. As a new offence is being created by these clauses, what will be the position of people who have already downloaded material on to their computers that until now has not been illegal but henceforth will be? Will the possession of that be regarded as a criminal offence and, if it is, what advice are the Government offering to help people to get rid of it? This is an important issue. This House cannot pass legislation that inadvertently turns people into criminals, particularly when the activity in which they are engaging is not doing anybody outside their own homes any harm.

Lord Monson: My Lords, I had not originally intended to speak on this group of amendments but, as a libertarian, I feel that I must support them, as I support Amendment No. 87A in the name of the noble Lord, Lord Waddington, and others. A few years ago there was a very famous Italian film. I am afraid that I cannot remember the title. Some of your Lordships may remember it. It won awards all over the world and was highly acclaimed. It was set in Italy in a peasant community about 50 years ago and one of the scenes showed an adolescent farm lad relieving his frustrations with a donkey, standing on a box in the middle of the field in order to do so. I saw this in a large London cinema that was absolutely packed because the film was so highly acclaimed. The audience tittered, as you might expect, but nobody was at all shocked or offended. The Government will argue that the film was not produced solely or principally for the purpose of sexual arousal and, indeed, that is the case. But suppose that somebody was to download that scene from the film on to a DVD and play it over and over again for their rather peculiar sexual tastes. That would be odd, no doubt, but should they really go to prison for such a thing?

Lord Cobbold: My Lords, I totally support the point of view so eloquently expressed by the noble Lord, Lord McIntosh. This House in particular should work hard to preserve the human right to do what one wishes in one's own home that is not a threat to anyone else in the outside environment. I support this amendment and others coming.

Baroness Howe of Idlicote: My Lords, I, too, support these amendments. Almost inevitably we are going to have to go through the process of deciding whether what is described—what is attempted to be defined—is in fact effective at all. This is a preliminary attempt to do that. The far more important issue will be what we do about all these clauses. In my view, we need a far harder and deeper look at these issues than we are able to give them in this Bill. That is for the later part of the debate. In the mean time, we shall all be interested to hear what is said. I share everybody's view that, if what is going on in one's own bedroom is legal, so long as it is not frightening the horses—or whatever phrase you want to use—it may even be doing some good, but we can discuss that later.

Baroness Butler-Sloss: My Lords, I do not like pornography. I was never allowed to read Juvenal's satires as a child. Child pornography is abhorrent and is rightly censured throughout the world. But I cannot see the point of Clause 63 and subsequent clauses and I do not understand why the House is being troubled with them.

Lord Thomas of Gresford: My Lords, judgment tends to go out of the window when we deal with matters in this area. I recall many years ago prosecuting a lady in Caernarfon Crown Court for the murder of her husband. The judge was a recently appointed High Court judge, a commercial lawyer by training, and the lady received probation when she pleaded guilty to manslaughter on the grounds of provocation. The next case involved attempted bestiality, so I know a little bit about it in court. That involved two Welshmen and sheep. However, the Welshmen were drunk at the time and the sheep were not violated. That is why it was charged as attempt. The judge who had given the lady probation for killing her husband proceeded to sentence these two to 12 months' imprisonment immediately. They went to the Court of Appeal. They were given immediate bail and eventually the case was disposed of by the appeal court on the basis that it was stupid to have brought the case in the first place.
	What is this provision in the Bill about? Is it an attempt to punish people for having extreme pornography in their possession or is it an attempt to discourage the commission of acts that we might disapprove of and are contained within the extreme pornography? If you cannot sell a picture or a film or a video, presumably the thinking is that there is no point in such acts taking place in the first place. One has this dilemma: if those acts are not criminal in themselves—a matter to which my noble friend Lady Miller and other noble Lords referred—punishing a person for having pictures of them seems rather silly.
	That is what these amendments are about. That is why we on these Benches seek to put into the clause a condition that the act that is shown is criminal. If it is not criminal—if it is consensual—where is the harm? One has to be clear about what one is seeking to punish. What is the motivation? Is it distaste for people watching pornographic films or is it an attempt to discourage illegal conduct? We would go along with an attempt to discourage illegal conduct but not with an attempt to discourage consensual sex that takes place between two people in whatever form it may be. I share the distaste for pornography expressed by many noble Lords. As a classical scholar, I fully understood the depths of obscenity to which the noble Earl descended. I do not see that that is any reason for maintaining this clause in its current state. I respectfully urge on your Lordships that the amendment be accepted.

Lord Hunt of Kings Heath: My Lords, this has been a very interesting debate. I think that the noble Baroness, Lady Miller, said in her introductory remarks that she accepts some of the spirit behind the Government's legislative proposals, but clearly there is concern about the way in which they have been drafted. I very much understand the point made by my noble friend Lord McIntosh, to whom it is a great pleasure to respond. He spoke of being aware of legislation that seeks to intrude too much into the individual lives of people where, as he said, harm is not caused to others. I very much understand the concerns expressed by noble Lords. The noble Lord, Lord Henley, said that it is all right unless it frightens the horses. I do not know about the horses, but the material that I saw at Charing Cross police station certainly frightened me.
	While I accept all the concerns expressed by noble Lords tonight, I would also put the other point of view, which is that there is large and genuine public concern about extreme pornographic material, particularly since the growth of the internet, which has allowed existing controls on publication distribution under the Obscene Publications Act to be circumvented. There is also concern about the adverse influence that that material might have on those watching it. It is not simply material that potentially causes arousal. The tests that have to be applied are, I suggest, high tests. There are three elements that have to be met for someone to be found guilty of the new offence. First, material has to be pornographic; then, it has to be concerned with extreme acts, which are described as threatening a person's life or as resulting or being likely to result in,
	"serious injury to a person's anus, breast or genitals".
	It also has to be,
	"an act which involves sexual interference with a human corpse",
	or an act concerning,
	"a person performing an act of intercourse or oral sex with an animal".
	Those acts must be "explicit and realistic"; persons and animals depicted must be such that "a reasonable person" would think them real. The third element of the test is that it must be,
	"offensive, disgusting or otherwise of an obscene character".
	That is why many of the examples raised in our debates about works of art simply would not meet the tests described in the Bill.

Baroness Falkner of Margravine: My Lords, the Minister said that, when he went down to the Charing Cross station, some of the material that he saw certainly succeeded in frightening him. Would he go beyond that and say that it affected him in a manner where he felt that he might commit violence following on from viewing those acts? If I understand the Government's rapid evidence assessment—it was, as we know from the Committee stage, a highly contested exercise—there was conflicting and contested evidence as to whether simply viewing some of these acts would lead anyone to go out and violently commit those acts themselves against people.
	Secondly, the Minister comes to the tests. He uses the words "graphic" and "realistic". Does he accept that much of the material is produced by consenting adults—much of it may well have consensual acts in its production—and may comprise a great deal of acting? Would he not agree that in acting one may project an image that is threatening or violent, or whatever, in order to be fantastical, and that that is perfectly fine in areas of art? It is rather odd that he uses such tests in this area and says that these tests therefore have a high threshold. Drama is, indeed, about simulating death and many other things. Might the Minister be able to explain that?

Lord Hunt of Kings Heath: My Lords, I was trying to explain that there are three elements to the offence. In our two debates, noble Lords have quoted or referred to certain works of art and suggested that they would be caught; I suggest that none of the examples quoted would be, because those three elements of the test would not have been met.
	The noble Baroness asked whether, having viewed these images at Charing Cross police station a couple of weeks ago, I then felt violent or that I would indulge in some offence. I actually felt very sick, because they were pretty disgusting images, and I frankly find it horrific that they are available and that people can see them. I am sorry, but I do not take this very liberal approach of "If it does no harm to the people taking part, why should we worry about it?" I do worry about it, and about the access that people have to that kind of disgusting material. I am afraid that is my position.

The Earl of Onslow: My Lords, were the acts that the Minister saw in those videos in themselves illegal? That question has been asked frequently in this debate. Were the people doing these things—and I concede that they were obviously disgusting—doing disgusting legal things or disgusting illegal things?

Lord Hunt of Kings Heath: My Lords, I think that the answer is that some would be covered by offences in this country and some would not, but they were all disgusting. I suspect that we will, in the end, have to come to a value judgment on this matter. Frankly, I want to discuss why the Government would have difficulty with the amendments, and the House will then no doubt want to take a decision on that view—either today or at another stage.
	Clearly, the effect of the amendments that the noble Baroness, Lady Miller, has put forward is to add an additional element to the offence; namely, that the image concerned depicts an actual sexual offence. In order to come within the terms of the offence, an image would have to depict a specified extreme act in an explicit and realistic way. As a consequence, only graphic and convincing scenes would be caught. To go further than that and to require that the image is a record of a sexual offence being carried out would make the clauses more or less inoperable for two reasons. First, the issue with most extreme pornography is not that a sexual or any other offence may or may not have been committed. As I said, much of the material that I saw, which has been found by the Metropolitan Police, might be prosecuted under the Obscene Publications Act, but would not satisfy a test that a sexual offence had been committed. The proposed amendment would render the offence inapplicable in respect of such material. I do not run away from this because the point was made by the noble Lord, Lord Thomas of Gresford, in his intervention. We are targeting that material not on account of offences which may or may not have been committed in the production of the material, but because the material itself, which depicts extreme violence and often appears to be non-consensual, is to be deplored.
	Secondly, the other problem is that if there were a suspicion that a sexual offence had taken place, that would be pursued by applying the existing criminal law here. However, it is far more likely to have been produced in other countries and part of the problem that we face is mainly because of the internet. Often it applies to a different jurisdiction. To make a prosecution for possession of the image contingent on the prosecution first, determining from that image whether or not a sexual offence had taken place, and secondly, obtaining the necessary evidence and witnesses to prove the elements of that offence beyond a reasonable doubt, would be to make such a prosecution all but impossible. As I said, most of the extreme pornography is produced outside our own jurisdiction.
	The noble Baroness has tabled amendments in the second group that would remove the offence altogether. The advice that I have received is that the amendments in this group would create almost the same impact. Amendment No. 86PA would create a new defence applicable where the defendant reasonably believed that no one portrayed in the image concerned was coerced. I am aware that the noble Lord has concerns about individuals who keep a record of themselves freely and willingly participating in bondage, domination, submission and sado-masochistic practices in which no unlawful harm occurs. I recognise that it would be anomalous for a person to be committing an offence by possessing an image of an act which he undertook perfectly lawfully. We intend to introduce at Third Reading a defence which addresses precisely that situation.
	Noble Lords will have to apply a value judgment to this issue. I take them back to the elements of the offence. This is not intended to catch the kind of art to which noble Lords have referred. The three elements of the test ensure that it is only this extremely nasty pornography that in no circumstances could be counted as art, which will be covered. As a society we have a duty to protect people. It is appalling that this material is available and we have to do something about it.

Baroness Miller of Chilthorne Domer: My Lords, I thank those who have spoken, particularly the noble Lord, Lord McIntosh, who set a tone of bravery for this debate, which is to be applauded. I am surprised that the Minister did not make anything of the Government's attempt, with its rapid evidence assessment, to link this violent pornography, as he did in Committee, with the fact that people were then more likely to commit criminal acts. Pushing this was one of the Government's weakest suits, so perhaps it is not altogether surprising that he did not refer to it this time. In the debate we have just had, the issue of whether we are talking about violence or sexual arousal is still confused. The right reverend Prelate the Bishop of Chester was useful in Committee when he applauded the Government's attempt to get to grips with this issue, but shared a feeling with the rest of us that things are not right. I cannot find his exact quote at the moment.
	My brief experience in your Lordships' House tells me that this number of amendments linked together usually means that the legislation is in difficulty. That is still where we are. The Government have two things going on here. One is that they have a rapid evidence assessment that they used originally, in Committee, to back up their argument that people must be prosecuted and receive heavy prison sentences—of five years—for even viewing this sort of material, because by viewing it they were far more likely to commit violent offences. I do not want to stand here as an apologist for people who commit those sorts of offences against women. I feel very strongly that we need to stamp down on that sort of violence, but it is the violence that should be addressed, not the sorts of issues that the Minister has just been talking about. We are talking about somebody viewing something in the privacy of their own bedroom, even if those images are violent. I agree with the Minister that society has a problem, but how often has he watched television after 11 pm? All the free-to-view channels are absolutely stuffed with sex and violence that anybody can watch. While it may not be as extreme—

Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Baroness. That is the point that she was just coming to. We are talking here about extreme pornography. I extend a warm welcome to noble Lords to view this material and see what we are talking about. It is important that we understand that.

Baroness Miller of Chilthorne Domer: My Lords, if we followed the Minister's invitation we would have to experience every single thing that we legislate about in this House. That is not a principle that we have ever tried to follow, although maybe we should.

Noble Lords: That is reasonable.

Baroness Miller of Chilthorne Domer: My Lords, the noble Baroness says that it is reasonable but the noble Lord, Lord Faulkner, who agreed with my amendments, went to Charing Cross to view it and still comes to the same view. If that is the feeling of the House, perhaps we should all see the material before Third Reading, but I do not think that we will change our view. The Government's contention is that by viewing it people are more likely to commit violent offences. Therefore, they justify walking into people's bedrooms and turning them into criminals simply for viewing something.

Lord Hunt of Kings Heath: My Lords—

Baroness Miller of Chilthorne Domer: My Lords, can I finish my point? I am sorry to provoke the Minister so much, but that is dangerous ground, and the Minister is in danger of leading his Government into becoming the thought police.
	There is no direct connection with committing a crime. If the Minister was able to concede that we should tie it in to the Sexual Offences Act, which he is resisting, or the Obscene Publications Act, which he is resisting, I would feel far more sympathetic, but he is resisting all those connections. That is a great pity.
	I will confine my final comments on the rapid evidence assessment to when we come to the clause stand part debate, and I will want to test the opinion of the House then. The Minister has not really answered any of the issues that have been worrying your Lordships this evening. In light of the fact that the Minister has made absolutely no concessions at all to the next group of amendments, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 86K to 86M not moved.]

Baroness Miller of Chilthorne Domer: moved Amendment No. 86N:
	Clause 63, leave out Clause 63

Baroness Miller of Chilthorne Domer: My Lords, I shall not at this stage rehearse any of my earlier comments. However, as the Minister has not accepted any of my amendments in the last group, which would have substantially improved the Bill, or even conceded that the Government would come back with anything beyond the one issue he mentioned, I have no option but to move this amendment.
	One substantial difficulty that I have had with the rapid evidence assessment that the Minister sent me between Committee and Report is that I discovered in reading it that an awful lot of the assessed evidence was produced before the internet was even widely available. Worse, however, is the fact that one of the assessors was one of those who wrote some of the research paper. That is particularly reprehensible. I have had communications with 40 academics, apart from the interest groups who obviously have an interest, who are deeply worried by the Governments' position. Therefore, in light of the informed comments of your Lordships on the previous group of amendments and the failure of the Government to move anywhere on this, I beg to move.

Lord Hunt of Kings Heath: My Lords, I am not sure whether the House wishes me to go over the ground again, or whether the noble Baroness wishes to test the opinion of the House. All I would say on the REA is that the noble Baroness will know that we think that its conclusion supports the existence of some harmful effects of extreme pornography on some of those who access it.
	I think it is plain common sense that when people continuously use some of these revolting images it has an impact on their behaviour. That would not surprise me at all. I know that there has been a debate over the years on the impact of violence on television. I know that some research has shown that it has so impact at all. That is obviously baloney; absolute nonsense! I agree with the noble Baroness when she referred to the post-11 o'clock TV. I am afraid that the workload of your Lordships' House is so great that I can never stay up that late, but I understand what the noble Baroness says. Do I believe that that has a negative impact on people's behaviour? Yes, I do, and I wish that we did not have to see it. Of course, there is always a balance to be drawn. I am sure that my noble friend Lord McIntosh utterly disagrees with me.

Lord McIntosh of Haringey: I do, my Lords.

Lord Hunt of Kings Heath: My Lords, my noble friend does. That is why I suspect that, in the end, it comes down to personal conscience and I welcome the opportunity for the noble Baroness to put this to the test.

Lord McIntosh of Haringey: So the Whip is off.

Baroness Howe of Idlicote: My Lords, I was not aware that we were not going to debate this second issue. I was certainly reserving a number of my remarks for the second group of amendments. Does the fact that the Minister has replied mean that there is no opportunity to debate what we have before us rather more fully?

Lord Henley: Yes, my Lords, it does.

Baroness Miller of Chilthorne Domer: My Lords, I regret that the noble Baroness, Lady Howe, has not been able to play her extremely useful part. I know one of the points that she would have made, so, if I may, I will say it for her. We asked in Committee for a far more measured look at these issues, particularly violence, and their effect, perhaps through a Joint Committee of both Houses. We said that this was not something to be stuffed into a Bill in a small way like this. The Minister and I are clearly never going to agree on the fact. It is a matter not of personal conscience but of evidence. If we do not have any evidence to intrude on people's lives, I do not make an apology. A liberal point of view is that we should not do so unless there is evidence of harm. Common sense tells us that the Minister is on weak ground because his own assessment has not produced any evidence. I could read the conclusions, but your Lordships can read them: it is the weakest summary of conclusions I have ever read anywhere. It makes no final conclusion at all on a link. I do not believe that we are going to agree tonight, so I beg leave to test the opinion of the House.

On Question, Whether the said amendment (No. 86N) shall be agreed to?
	Their Lordships divided: Contents, 30; Not-Contents, 66.

Resolved in the negative, and amendment disagreed to accordingly.
	Clause 64 [Exclusion of classified films etc.]:
	[Amendment No. 86P not moved.]
	Clause 65 [Defence]:
	[Amendments Nos. 86PA and 86Q not moved.]
	Clause 66 [Penalties etc. for possession of extreme pornographic images]:
	[Amendment No. 86R not moved.]
	Schedule 16 [Hatred on the grounds of sexual orientation]:

Lord Thomas of Gresford: moved Amendment No. 87:
	Schedule 16, page 219, line 20, at end insert—
	"( ) After subsection (1) insert—
	"(1A) "Threatening" in subsection (1) extends to words, behaviour or written material which asserts or implies an association between sexual orientation and a propensity to commit child sex offences under Part 1 of the Sexual Offences Act 2003.""

Lord Thomas of Gresford: My Lords, this was an amendment that I moved in Committee. Its purpose is to extend the meaning of "threatening" in subsection (1) to,
	"words, behaviour or written material which asserts or implies an association between sexual orientation and a propensity to commit child sex offences under Part 1 of the Sexual Offences Act 2003".
	There is considerable disquiet among the public about child sex offences. It is a disquiet that everybody shares. It can give rise to strong emotions that can, in some situations, turn into violence against an individual. That is the basis upon which I draw your Lordships' attention to the fact that the general public's distaste for—indeed, hatred of—child sex offences is sometimes used as a weapon by people who have strong views about homosexuality. It does happen in our society that in order to stir up hatred against someone who is homosexual, an allegation is made that they are nothing more than a paedophile. I have experience of that causing great violence, harm and hurt to individuals who are homosexual.
	It could be said that "threatening" already includes an association between sexual orientation and a propensity to commit child sex offences, but we believe that it is necessary to spell this out so that people who seek to attack individuals because of their homosexuality should beware of what they say and what associations they make between the sexual orientation of the person they are talking about and the crime of paedophilia. I beg to move.

Lord Hunt of Kings Heath: My Lords, I thank the noble Lord, Lord Thomas of Gresford, for raising this important point. I have great sympathy with what lies behind it. I agree that allegations that gay people are prone to being paedophiles are particularly damaging and distasteful and that such allegations should be challenged vigorously. I also agree that in many instances those allegations will be threatening and intended to stir up hatred. Where we have a slight disagreement regarding the Bill is our belief that when such allegations are threatening and intended to stir up hatred, they will be covered by the offence. Where they are made in a way which is not threatening, they will not be covered. We think that that is right.
	I understand that the noble Lord has moved his amendment in order to send a signal. Allegations of paedophilia will always be damaging and invidious in the context of stirring up hatred; it is a matter which we hear and read about too often. But we see a risk of extending the offence in a way which will stretch the meaning of "threatening". It could make the offence less clear if we do not stick to the normal meaning.
	There are many allegations we may find distasteful, but that does not mean that there are grounds for making all such allegations criminal offences. In the debate on the amendment tabled by the noble Lord, Lord Waddington, we will discuss the question of freedom of speech and the balance to be drawn. Allegations that are threatening or that raise public order concerns can justify some restrictions on free speech, but the same cannot be said of all allegations that are simply distasteful.
	We are not persuaded that this amendment will make the offence more effective. We know that there are individuals and organisations that are ready to equate homosexuality with being a paedophile, but if we make such allegations specifically illegal it will be easy for those organisations and individuals to shift their allegations and perhaps take up some other line of attack. For example, as I mentioned in Committee, they may say that all gay people have AIDS. We do not think the proposed amendment provides much additional protection. We think that we should rely on the protection in the Bill as it stands. However, I assure the noble Lord, Lord Thomas, that I am sympathetic with the intention behind his amendment.

Lord Thomas of Gresford: My Lords, the Minister says that he is sympathetic, and he rightly says that we are seeking to send out a signal, but what I was waiting to hear from him was what signal the Government would send on this issue. His response at the moment is simply to say that something may be threatening or it may not be, and that if it is threatening it is already covered. He recognises the problem and the danger, but he fails to give any signal that would dissuade people from drawing this parallel in their conduct.

Lord Hunt of Kings Heath: My Lords, the signal that I have given is to echo the noble Lord's concern about such allegations. However, we do not need to go further than the Bill to deal with the issue. I hope that the signal that I would send would be as powerful as the noble Lord's.

Lord Thomas of Gresford: My Lords, I shall not trouble your Lordships by dividing the House at this stage. I will reflect on what the Minister has said. I am not sure whether I could bring this issue back at Third Reading, but it may be useful to have further discussions on the topic. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Waddington: moved Amendment No. 87A:
	Schedule 16, page 220, line 2, at end insert—
	"After section 29J insert—
	"29JA Protection of freedom of expression (sexual orientation)
	In this Part, for the avoidance of doubt, the discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices shall not be taken of itself to be threatening or intended to stir up hatred.""

Lord Waddington: My Lords, it is highly unsatisfactory to be embarking on the amendment at this hour of the night in breach of the normal rules of the House. I will not, however, waste the time of the House by voicing my indignation, and I will go straight to the meat of the matter.
	This morning, I received a very moving letter from the mother of a young man whom she believes was brutally murdered because he was gay. I can well understand such a person being desperately anxious that nothing should be done to weaken the protection which they hope may be afforded to gays by this new hate crime offence. I therefore start by making it plain that I did not in Committee, and do not now, seek to weaken the protection that the Government's proposal is designed to give gay people. I have never set out to narrow the scope of the provision. My intention has been absolutely clear: to make clear what both the Government and I agree is outside the scope of the provision. By so doing, I hope to prevent any repetition of the scandals of recent years.
	In our debate in Committee, a number of noble Lords expressed their general support for a free speech provision, but they also voiced criticisms of the then amendment. With the help of colleagues, to whom I am immensely indebted, we set out to meet all the concerns that were expressed in Committee and to find a form of words that were neutral and that could not by the greatest stretch of imagination be thought to be aimed at gays and calculated to encourage homophobic attitudes and behaviour towards them. I hope noble Lords will agree that, in seeking common ground and consensus, we observed the best traditions of this House. That is what it should be all about.
	Some might say that the amendment is now so moderate in its terms that it merely states the obvious and is therefore unnecessary, but those who say that are, I fear, closing their eyes to what has really happened in recent years. The scandals to which we have often referred could not have occurred unless the police and sometimes the prosecution authorities had thought that threatening, abusive and insulting behaviour—the requisites for prosecution under the present Public Order Act—could be inferred from mere comment or criticism. How else can one explain the prosecution to conviction of the Bournemouth preacher, the investigation of the right reverend Prelate the Bishop of Chester, the arrest of Robin Page for a tasteless joke at a country fair, and the arrest and prosecution to conviction of the Oxford student for his jest about a gay horse? How else can one explain the interrogation of Lynette Burrows following comments about gay adoption, and the thoroughly disgraceful interrogation of the Fleetwood couple after they had complained about their council's gay rights policy? If the police under the old law assumed that words about sexual matters must have been threatening and likely to cause distress without any supporting evidence to that effect, why should it be assumed that they would not infer threats and intention to stir up hatred under the new law?
	In Committee, the Minister suggested that all our concerns might be met by guidance. But if guidance can be clear, so can the words of a statute. Surely our words are clear enough. Furthermore, guidance was in existence when all the abuses to which I have referred occurred, and which it entirely failed to prevent. Perhaps that was in part because the guidance was erroneous. When I read Policy for Prosecuting Cases with a Homophobic Element, published by the Crown Prosecution Service, I was astonished to find that it contained a definition of homophobia which does not correspond with that in any of the dictionaries that I have consulted. By my book, homophobia is hatred or fear of homosexuality or homosexuals. But the Crown Prosecution Service has invented its own definition and says that it embraces dislike, not hatred, of a person's lifestyle.
	I must make another point. The noble Lord, Lord Hunt, did not really address the undesirability of there being a free speech clause in the religious hatred offence but no free speech clause here. The noble Lord said that the free speech clause in the religious hatred offence had been added against the wishes of the Government, who had not thought that it was necessary. But the Government have accepted the position and have not chosen, for instance, to remove the provision during the passage of this Bill. I cannot believe that the noble Lord really thinks that it is desirable that there should be a free speech clause in the religious hatred offence but no free speech provision here.
	The dangers are obvious of the police being led to believe that preservation of free speech is an important consideration in the one case, but not in the other. It is no good to say that there is no free speech clause in the racial hatred offence and that its absence has not caused trouble. When it comes to language touching on matters of sexual orientation, there has already been a load of trouble with the police misapplying the existing Public Order Act. It is our plain duty to try to prevent this continuing to happen.
	Finally, the Minister referred to rap lyrics urging the killing of gay men and the hanging of lesbians. His comments seem somewhat irrelevant, for I doubt whether he thinks that his new offence will do much, if anything, to stop the use of such lyrics. I cannot believe that he thinks that a free speech amendment would license them. Instead of raising such irrelevances, it would be helpful if he would make plain that encouragement of violence against gays, or for that matter anyone else, is now already an offence under the Serious Crime Act 2007, which makes criminal the encouragement of crime—for example, the encouragement of violence against a person or a class of persons.
	Plainly, my amendment will not weaken the protection sought to be given to gays. It is a sensible provision to prevent the repetition of abuses which have occurred all too often under the Public Order Act and to secure free speech. I commend it to the House and beg to move.

Lord Armstrong of Ilminster: My Lords, I have added my name to the amendment proposed by the noble Lord, Lord Waddington. I simply wish to say that he has said all that I could want to say. It seems to me that discussion or criticism of a particular sexual orientation can be expressed without giving rise to incitement to hatred. If it can be, it should be allowed to happen in the interests of free speech. I strongly support this amendment.

Lord Clarke of Hampstead: My Lords, my name is also attached to this amendment, and I am very proud that it is. In supporting the amendment, I cannot add much to what I said on the fifth day in Committee, but since then I have continued to receive letters from people who are worried about this clause. I am now more convinced than ever that the amendment before us is very necessary. If the House agrees with the amendment, it will do much to allay the doubt that troubles many people like me. On 3 March I quoted from one of the letters I had received, and this evening I would like to quote from a letter I have received in the past few days. The noble Lord, Lord Waddington, has already referred to the people who wrote from Fleetwood. Because of the hour, I will not read out the whole of the letter.
	The letter is from two people who describe themselves as pensioners and Christians. They heard that the council where they live wanted to display homosexual leaflets around the area. The couple asked a council officer whether they could distribute Christian leaflets. They were told that no, they could not. The reason given by the official was that homosexuals would find it very offensive. They said that they were not aggressive and did not raise their voices. They went home. Two or three days later they found out that the man they spoke to at the council had alerted the police. Two six-foot tall policemen turned up at their door and they were interrogated in their own front room for 80 minutes. They were accused of making homophobic phone calls to the council. I will not go into the detail, but thank God that common sense prevailed. After a year of worry and stress, the police and the council eventually made a full apology which made the national news. Many noble Lords will know about the case.
	Let us imagine it: two pensioners sitting in their front room, terrified by the police walking in. These are the things that I have opposed all my adult life, whether in apartheid South Africa, in Iran or in many other parts of the world. I was proud, as a member of the Labour Party and chairman of its international committee, to argue for free speech, and I find it hard to come to this House and have to plead that your Lordships will back a simple amendment that clarifies the issue and makes clear that there will be no infringement of free speech.
	On 3 March I said:
	"The concept of bringing in laws that forbid the precious right of free speech in our society is in itself a frightening prospect. In a nation such as ours, with proud traditions of freedom, even contemplating the suppression of opinions is frightening to all who genuinely want to be able to speak out against that which they think is wrong, harmful and potentially dangerous—they fear they will be treated as criminals. It is indeed frightening. Is this what our Government want?".—[Official Report, 3/3/08; col. 927.]
	I ask again: is this what the Government I have worked for all my adult life to get elected want? I find it offensive, and many of the people I have worked with over the years share my views.
	In previous debates the Government have said that a free speech clause is unnecessary. It is said that the wording of the offence already strikes the right balance between preventing the incitement of hatred and the protection of free speech. If that is so, why not underline the need for balance by including a free speech clause? It is very straightforward. From what I have read, the Government do not object in principle to such a clause.
	I was quite surprised when I was given a copy of a letter sent to my noble friend Lord Stoddart of Swindon—he is my noble friend. The letter takes up the issue of the Racial and Religious Hatred Act 2002. I may be a bit touchy, and as I get older I feel things that I should not, but this is a Minister writing to a Member of this House:
	"I should also like to take the opportunity to clarify one further point, which you raised in your speech ... For the offence of stirring up religious hatred, Parliament added a clause to safeguard free speech. We did not then think it was necessary, and we do not think so now. But Parliament decided".
	Where I come from, that smacks of arrogance: Parliament makes a decision, but they still think they were right, and above the will of Parliament. I find that a little bit odd.
	My view is that the criminal law should be clear in explaining what is and what is not an offence. If the Bill is enacted without a clause that protects freedom of expression, religious believers will be uncertain about what they can say as well as uncertain as to what they may discuss or debate on the subject of homosexual practice in their teachings.
	I urge the House to give wholehearted support to the amendment and to demonstrate to the Government that we are seeking to protect the very precious principle of free speech. At Second Reading a number of illustrations were given by noble Lords that there is quite a lot of evidence that the public, the police and, on occasions, some courts have failed to take sufficient account of the protection of freedom of expression in cases which involve criticism of the practice of homosexuality. This is not about that issue; it is about the right of people to have a point of view and to express it. I hope that the House will support the amendment.

Lord Elton: My Lords, perhaps I may beg the Minister to have in mind that the object of his legislation, as I understand it, is to take out the heat of the encounters between people with different views about sexual orientation. Where there is an entirely disproportionate reaction to criticism by one group of another of the sort we have heard from my noble friend Lord Waddington and from the noble Lord, Lord Clarke of Hampstead, will he pause to think what effect that is going to have on relations between the two groups in question? It must exacerbate them and therefore in order to achieve the policy objectives which the Minister has in bringing this before Parliament, there must surely be a clause such as my noble friend has devised to prevent that happening.

Baroness Turner of Camden: My Lords, I urge my noble friend not to accept this amendment. I spoke against it in Committee and my views have not changed, even though there has been a slight amendment to the original wording. I believe that it is necessary because there has been an increase in homophobic violence, some of it ending in death, as has already been reported. The Government are to be commended on introducing this Bill, which is designed to try to deal with that. It refers to incitement to hatred. It is not about expressions of opinion, it is about incitement to hatred. Clearly, that should be deplored in any event. It leads eventually to the commitment of homophobic actions.
	I have had a number of letters about this amendment, some in support and some not. Those in support have often said that they oppose it on grounds of religion because they take the view that this is anti-Christianity. I have to say to my noble friend that I, as I am sure have a number of other noble Lords, have a number of friends who are devout Christians. For example, I was able last year to go to the civil ceremony of a couple of friends of mine, both of whom are devout Christians and both of whom spend a lot of time doing good works which they feel is an expression of their Christianity. Certainly, it is by no means a view held throughout the Christian community that this kind of action should be taken in relation to homosexuals. Not everybody holds the same view about homosexuality as the people who wrote to me in support of the amendment.
	The Government have done the right thing in introducing this provision in the Bill. We are not talking about religion as far as the religious incitement is concerned, the different arrangements in relation to religious hatred and so on. Religion is a belief whereas sexual orientation may be a state of being. Therefore different arrangements should apply. It seems to me that the Government have made a genuine attempt to try to deal with an increasing problem of homophobia and violence against gays and lesbians. I think that they should be supported for it and I commend them for doing so.

Lord Monson: My Lords, I respectfully point out to the noble Baroness, Lady Turner, that there has not been a slight change in the original wording, there has been an enormous change in the original wording. It is much more moderate and makes no mention whatever of homosexuality. People should not only have a legal right to urge others to refrain from certain sexual practices, in certain circumstances I submit they have a moral duty to do so.
	The United Nations Convention on the Rights of the Child, which has been ratified by the United Kingdom, deems a child to be anyone under the age of 18, and as such deserving of protection from physical and mental harm. In consequence of a change in the law about seven and a half years ago, forced through under the Parliament Act against the better judgment of the great majority of your Lordships, 16 and 17 year-olds can now legally be subjected to medically dangerous sexual practices in addition to relatively safe practices to which there can be much less objection. This is all the more paradoxical in the light of the Government's determination with all the powers at their command to try to prevent under-18s from smoking, which in statistical terms is decidedly less dangerous than being sodomised.
	As I said on the previous occasion, there is very little danger in practice of anyone being sent to prison for seven years, seven months or even seven weeks if this extremely modest and moderate amendment is rejected by the Government for the simple reason that no British jury would convict. However, there will on the other hand be a very great danger of the unfortunate ordinary policeman and policewoman being urged on by politically correct chief constables to step up their harassment of critics of such behaviour just as the right reverend Prelate the Bishop of Chester, Lynette Burrows, Robin Page and many others were inexcusably harassed.

Lord Smith of Finsbury: My Lords, I am loath to disagree with my noble friend Lord Clarke who has been a good and valued colleague for many years but I am afraid that I cannot agree with the conclusions of his very moving contribution to this debate. I hold no brief for anyone who causes unnecessary distress to anyone because they have made a joke or an inappropriate remark. However, let us not forget that the background against which the Government have placed this measure in the Bill is that every single day in this civilised country of ours people are abused, attacked, have hatred expressed against them and on some occasions suffer extreme violence simply because of their sexuality. That is the background which has led to the introduction of the measure in the Bill. In my book incitement to hatred on grounds of sexual orientation is as unforgivable and unacceptable in a civilised society as incitement to hatred on grounds of race or colour. I believe that it may have been when the noble Lord who moved this amendment served in the Home Office that that provision was rightly brought into the law of this land.
	It seems to me that this amendment falls foul of two things. First, if it is simply about allowing people to express a view it is unnecessary because the measure as it stands in the Bill allows the expression of views. It is incitement to hatred that the measure is about. If all that the proposer of this amendment is interested in is ensuring that people should be free to speak their conscience, there is nothing in the Bill as it stands which prevents them doing so.
	However, I have a greater fear about this amendment. For all the moderation and the consensual way in which the noble Lord quite rightly introduced it, my worry is that it will drive a coach and horses through the intention of the clause and it will allow those who stand up and incite hatred to take refuge in this clause, if it is amended, in justifying their behaviour. That to me would be a step backwards. Let us ensure that the law of the land protects the life and person of people whose only crime happens to be being different in their sexual orientation.

Earl Ferrers: My Lords, the noble Lord, Lord Smith of Finsbury, has made a very impassioned and understandable speech and it has been a moving one but I would ask the Minister to have fairly broad shoulders over these things. As with any argument, there is an argument on one side and there is an argument on the other side. The noble Lord, Lord Smith, said that day after day people were being damaged for being homosexuals. We all agree that that should not happen, so the ball can swing the other way and people can find that the things that they are doing which have been considered perfectly normal and reasonable are now coming under the sight of being illegal. One person said very effectively that a Christian who declares to an adulterer the Bible's teaching that adultery is wrong should not be made a criminal by the state and face a jail sentence of up to seven years. That is so whether he is talking to an adulterer or a homosexual. People ought to be allowed to say what their views—and their religious views—are. We have heard the problems of the right reverend Prelate the Bishop of Chester. The police went over his speech because it was thought that he had said something wrong. I do not believe that that is what the law should encourage people to do. The amendment of my noble friend Lord Waddington, is, if I might respectfully say so, very carefully drawn so as not to infringe the Government's desires to protect homosexuals; it merely states:
	"For the avoidance of doubt, the discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices shall not be taken of itself to be threatening".
	So the Government's desires to protect those who are homosexually oriented remain but the right to the freedom of speech also remains. I hope the Minister will have a broad mind over this because it is wrong to curtail the freedom of speech and without this amendment clarifying that, there is a great danger that that would happen.

The Lord Bishop of Newcastle: My Lords, this amendment succeeds one that was debated in Committee. In its original form it would have exempted certain sorts of speech or writing about sexual conduct from prosecution, even if they were threatening or intending to stir up hatred. Had I been able to be present then, I could not have supported it. But this new version is for the avoidance of doubt and so the question really hinges on whether it is necessary.
	If we take the view that the definition of the offence is both sufficiently clear and narrow and the word used is threatening—not insulting, not abusive, but threatening—and if the Bill already meets concerns about possible loss of freedom of expression, that makes the amendment unnecessary. If, on the other hand, the argument is that the amendment will not do any harm and it conceivably might do some good in protecting freedom of expression, it can be entertained for two reasons. The first is that it would give some protection from petty harassment by overzealous police officers investigating vexatious complaints, as indeed has happened. Secondly, it can be argued that the amendment would be helpful in meeting concerns about the so-called chilling effect of the Bill on free speech and expressions of opinion. We need to listen carefully to what the noble Lord, Lord Smith, said. On balance, my view still is that what the amendment says would be much better in guidance to the police and to the prosecuting authorities on the interpretation of the Bill than it would be in the Bill.

Lord Thomas of Gresford: My Lords, the interpretation of the Bill is not difficult because the offence, as defined, is using threatening words and behaviour with the intent of stirring up,
	"hatred on the grounds of sexual orientation".
	What are the ingredients that the prosecution has to prove beyond reasonable doubt to the satisfaction of a jury or magistrates? The prosecution has to prove, first, that certain words or behaviour used by the defendant were threatening. I suppose that that could be seen as an objective test. Would the jury or the magistrates consider it to be threatening if those words were used about them? The second ingredient of intent to "stir up ... hatred" requires the jury or magistrates to be satisfied about the state of mind of the defendant and that he intended to stir up hatred. Those are strong words. It throws a considerable burden on the prosecution to satisfy the jury that there was an intent to stir up hatred. An intent to stir up hatred surely cannot be derived simply from discussion or criticism of sexual conduct or practices or from urging persons to refrain from or to modify such conduct or practices. That is not enough to satisfy the ingredients of this serious offence that the Government now propose to put on the statute book.
	Freedom of speech is not derived by clauses inserted into every statute for the avoidance of doubt. Freedom of speech is derived from our common law heritage and, if necessary, we can go to the European convention to see it all set out. Every time there is an issue, it is not necessary to put it into an Act of Parliament. There is no question of any doubt arising here about the interpretation of the statute—absolutely none. It is clear what the prosecution has to prove. I concur with the right reverend Prelate that if, in the future, there is a suggestion that police officers are acting outside their proper ambit, firm and direct guidance should be given to them by the Attorney-General and by the Director of Public Prosecutions. That is how we can cope with this. The noble Lord, Lord Waddington, has done his best to modify the language of the previous amendment, but the result would be a clause that says nothing. It would not add in any way to the freedoms of expression that we enjoy. I regret to say that we on these Benches will not be able to support the amendment.

Lord Anderson of Swansea: My Lords, the noble Lord examined carefully and forensically the various ingredients of a possible offence. It may be that there would be very few, if any, prosecutions. But surely that is not the point. I guess that many of us have been impressed by letters from individuals around the country who have been met with overzealous police officers who have caused great anxiety until eventually the individuals have been told that no prosecutions will follow. Surely, the aim of this quite modest amendment would be to deter such overzealous police officers from causing such anxiety. I believe that this amendment is indeed modest, and I will have no hesitation in supporting it.

Baroness Knight of Collingtree: My Lords, I support very much what has just been said, and I want to point out to the noble Lord, Lord Thomas, that we are not talking about those cases only when they get to court. The fact is that one man wrote to me when all he had tried to do was to distribute perfectly innocuous letters asking whether people would come to the Easter service. He got a call from two policemen, and was followed up again because there had been complaints from a homosexual supporter that there was something wrong in that way about the leaflet. There was not, but much upset was caused to that man's family—and to his neighbours, who thought that he had created some terrible fault and done something wrong. It is not just when we get to court. Can we not protect people who simply want to get their friends and neighbours to come to a church service?

Lord Kingsland: My Lords, I said in Committee that the Opposition would be having a free vote on this matter. Personally, I shall be supporting the amendment from my noble friend.

Lord Hunt of Kings Heath: First, My Lords, the noble Lord, Lord Waddington, has had a long wait before we came to this amendment, and I am sorry that it takes place at so late a point in the evening. None the less, I think that the noble Lord would agree that he has had a good debate, and that the matters discussed have been raised very clearly indeed.
	I want to say at once that I understand the issues that the noble Lord and others have raised; it is described as a chilling effect, this concern that the passage of this legislation would unnecessarily inhibit the absolute right of freedom of speech. I certainly understand those concerns, but none the less the Government continue to believe strongly that the kind of clarification in the noble Lord's amendment, which differs from his in Committee, is not necessary. I am very happy to place on the record that it is indeed possible to discuss these topics or to criticise conduct in ways that are neither threatening nor intentionally "stir up hatred". In such cases, it would be plain from the meaning of the statute that no offence has been committed. The noble Lord, Lord Thomas of Gresford, made a most important point when he described the process by which a jury would have to come to a decision. The key phrase here involves threatening or intentionally stirring up hatred.
	I understand that this amendment's wording differs from those that we have seen previously. It seeks to ensure that discussions or criticisms of sexual practices are not in themselves taken as threatening, or are,
	"intended to stir up hatred",
	all of which is,
	"for the avoidance of doubt".
	Yet I do not see how any doubt can arise from the offence, as my noble friend Lord Smith and the noble Lord, Lord Turner, have said. Only words or behaviour that are threatening and,
	"intended to stir up hatred",
	are covered. That is abundantly clear; it will of course, be for the courts to decide whether, in all the circumstances, the words or behaviour were threatening—and the police and the Crown Prosecution Service will need to make a judgment about the circumstances and whether a prosecution would be likely to succeed. There should be no need to add anything to an offence for the avoidance of doubt if it is well drafted and leaves no room for doubt. I do not believe that the offence, as drafted, leaves any room for doubt whatever.
	The noble Lord's intention is to protect free speech, which is an entirely desirable intent. But the proposed new law covers only conduct that is both threatening and intends to stir up hatred on the basis of sexual orientation. We then come to the question raised by the right reverend Prelate, who answered it very effectively. As my noble friend Lord Smith said, any move that was thought to water down what is contained in the Bill as it is might be taken as giving a green light to the sort of conduct that we do not wish to happen. If, as in this case, we seek to clarify rather than change the law, why would that be necessary?
	I know that, as there is a specific saving for freedom of expression in the religious hatred legislation, the absence of such a provision in the homophobic legislation might suggest to the police and others that they need not worry about freedom of expression in this context. I greatly admire my noble friend and must say to him that, if in my letter I am guilty of arrogance, I apologise. There was no intent on my part. All that I was seeking to suggest is that, although Parliament put that provision into that Bill, the Government did not think that it was necessary and we do not think that it is necessary in relation to this Bill. I hope that that is not arrogance; I am simply expressing the Government's view. My noble friend knows me. I would hate to be thought of as arrogant and I hope that noble Lords do not think that I am.
	Noble Lords have raised examples where the police and public authorities have intervened in relation to other such legislation. The noble Baroness, Lady Knight, raised that point, as did others. I cannot comment on individual cases but I can say that it is very important that there should be appropriate guidance to the police on the new legislation. I am confident that perfectly sensible guidance can be produced.

Lord Tebbit: My Lords, can the Minister say whether he considers that the existing guidance on these matters is adequate?

Lord Hunt of Kings Heath: My Lords, I cannot say that I have studied the existing guidance with extensive care. I am happy to do so and am happy to respond to the noble Lord. I have no reason to think that guidance issued by the Crown Prosecution Service is not adequate.

Lord Tebbit: My Lords, if the Minister has no reason to think that the guidance is not adequate, how have the incidents that have been spoken about this evening occurred? What guarantee or prospect is there for us that future guidance will avoid those sorts of incidents?

Lord Hunt of Kings Heath: My Lords, it is simply not possible for me to comment on individual cases.

Lord Smith of Finsbury: My Lords—

Lord Hunt of Kings Heath: My Lords, I want to answer the noble Lord first.

Lord Smith of Finsbury: My Lords, I am trying to be helpful. My noble friend might perhaps wish to observe to the noble Lord that the provision that he is concerned about is not yet on the statute book.

Lord Hunt of Kings Heath: My Lords, that, as ever, is a helpful comment. I say to the noble Lord that he would not expect me to comment on the individual cases that have been raised. I am confident that there is no reason to suppose that the Crown Prosecution Service cannot produce perfectly adequate guidance, or that that guidance will not be followed. If that guidance is not followed, there are perfectly appropriate mechanisms for making complaints.

Lord Tebbit: My Lords, I thank the Minister, but I still do not think that he has understood quite what I said to him. Under the existing law—because I am aware that this Bill has not yet been enacted—there is guidance. I make no reference to individual cases; I merely ask if the noble Lord is satisfied that the existing guidance is proper, adequate and effective. He must be able to say yes or no to that question.

Lord Hunt of Kings Heath: My Lords, I have no reason to believe that the current guidance is inadequate. That is what I have said. I have no reason to believe that guidance, if this Bill is enacted, as I hope it will be, will not be adequate in the future. Such guidance having been produced, remedies are available if the authorities act outwith that guidance. I understand why the noble Lord, Lord Waddington, wishes to bring this to the attention of the House, and his concerns regarding freedom of speech, but his amendment will not help the case. In many ways it will confuse. At the end of the day, the issue stands or falls on the offence itself and the fact that the law covers conduct that is threatening and intends to stir up hatred on the basis of sexual orientation.

Lord Pearson of Rannoch: My Lords, surely the noble Lord must agree that whether the offence is threatening or not will be in the eye of the receiver, and not necessarily in the reality of the act.

Lord Hunt of Kings Heath: My Lords, it will be in the eye of the court which, eventually, might come to make a judgment. I am afraid that the amendment, as proposed, will not help the court in any way at all. It is perfectly clear what the legislation means. It is perfectly plain from the meaning of the statute whether a matter is threatening or intentionally stirring up hatred. I do not believe that the noble Lord's amendment will help the cause at all. It will not clarify; it will confuse. I invite the noble Lord to withdraw his amendment.

Lord Waddington: My Lords, I am extremely grateful to all those who have spoken tonight, particularly those who have spoken in support of the amendment. I am particularly grateful to so many noble Lords who have taken the trouble to stay so late to listen to this debate and, in some cases, to take part. I am bound to say that I was slightly wounded by the contribution made by the noble Baroness, Lady Turner of Camden. After the Committee debate I went through every contribution, taking heed of the criticisms made, and I take account of those criticisms in the new amendment. I remember clearly that the noble Baroness was concerned that the original wording might be taken to license homophobic behaviour. I do not think that anybody could say that that was a justifiable criticism of the new amendment.
	The noble Lord, Lord Smith, defended the clause, as did the noble Baroness. I am not attacking the clause; we are talking about the amendment. Surely, the noble Lord was not saying that, by the greatest stretch of the imagination, the amendment could be said to license the incitement of hatred. I do not think that he really believes that every criticism of sexual conduct implies hatred towards the person concerned. Plainly, my amendment licenses comment, but it certainly does not license the stirring up of hatred.
	I am grateful to the right reverend Prelate for his observations. He seemed to be saying that, certainly, my amendment would do no harm but he favoured guidance. I do want to repeat what I said earlier, but guidance did a fat lot of good over the past few years, when it was apparently referred to now and again before the police took completely wrong action under the Public Order Act.
	I listened carefully to what was said by the noble Lord, Lord Thomas of Gresford. He is a very distinguished lawyer, and, of course, he was entirely right in saying that it would not be difficult to direct a jury correctly on how to approach the wording of the clause. However, that is not the point. As my noble friend Lady Knight of Collingtree said, we are not talking about what happens before a jury; we are talking about how the police react in these circumstances. We know perfectly well that they have reacted in the wrong way when they have come to consider the Public Order Act.
	The noble Lord, Lord Thomas of Gresford, said that it was easy to understand the concept of intent to stir up hatred. He said that they were strong words. Goodness me, there are strong words in the Public Order Act: the words "threatening", "abusive" and "insulting". Those strong words did not stop the police investigating the behaviour of the right reverend Prelate the Bishop of Chester, who could not possibly have been guilty of threatening, abusive or insulting behaviour when he commented in an article on the possibility of some people being reorientated sexually.
	We are not dealing with juries; we are dealing with bizarre action taken by the police under the existing law. We have a duty to see that it does not happen under the new law. That is the purpose of the amendment, and I commend it heartily to the House.

On Question, Whether the said amendment (No. 87A) shall be agreed to?
	Their Lordships divided: Contents, 81; Not-Contents, 57.

Resolved in the affirmative, and amendment agreed to accordingly.

Lord Hunt of Kings Heath: My Lords, I beg to move that further consideration on Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.
	House adjourned at 11.49 pm.